High Court Judgment Template by x2zRh72

VIEWS: 1 PAGES: 20

									                                                 Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                 (Admin)




Neutral Citation Number: 2010 EWHC 104 (Admin)

                                                                          Case No:     C0/2493/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

                                                                         Royal Courts of Justice
                                                                     Strand, London, WC2A 2LL

                                                                        Date: 2nd February 2010

           Before : Robin Purchas QC sitting as a Deputy High Court Judge

Between:
                                      ALAN COX
                                                                    Claimant
                                              -and-

                         THE SECRETARY OF STATE FOR
                                COMMUNITIES
                           AND LOCAL GOVERNMENT
                                            First Defendant
                                    -and-

                       NORTH HERTFORDSHIRE DISTRICT
                                 COUNCIL
                                         Second Defendant
                                   -and-

                              T-MOBILE (UK) LIMITED
                                               Third Defendant




 Paul Stookes (instructed by Richard Buxton Environmental & Public Law) for the
                                    Claimant
   James Strachan (instructed by the Treasury Solicitor) for the First Defendant
                                       And
 Christopher Boyle (instructed by Freshfields Bruckhaus Deringer) for the Third
                                   Defendant


                         Hearing date: 15th January 2010



                          Approved Judgment
                      subject to editorial correction



                                     Page 1
                                                 Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                 (Admin)


Robin Purchas QC:

Introduction

1.   In this application the Claimant applies under Section 288 of the Town and

     Country Planning Act 1990 (“the 1990 Act”) to quash the decision of an

     Inspector on behalf of the First Defendant allowing the Third Defendant’s

     appeal from the refusal of planning permission by the Second Defendant for the

     erection of a telecommunications mast and base station at Hitchin Road,

     Letchworth. As argued in this court by Mr Paul Stookes, who appears for the

     Claimant, the main issue is whether the Inspector’s decision was flawed as she

     did not have information which was material to her decision. He did not pursue

     Ground 2, which related to the development plan policy concerning alternative

     sites.




Preliminary


2.   At the commencement of the hearing, the Claimant applied for a protective

     costs order. I refused the application for the reasons that I then gave. After a

     short adjournment, the Claimant elected to continue with his claim.



3.   The Claimant also applied to amend his claim by adding a further ground that

     there had been material non-disclosure or inaccurate presentation of the facts by

     the Third Defendant which was unfair to third parties, including the Claimant.

     The application had been made at a very late stage, having been first raised in a

     letter to the Court dated the 23 December 2009 and formally filed on the

     12 January 2010, some 3 days before the hearing. The short grounds for the



                                        Page 2
                                                  Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                  (Admin)


     application were that it was substantially based on the same facts as the existing

     ground and that the new ground was arguable in law. There was no explanation

     or justification why the application had been made at that late stage. While the

     facts appeared to be broadly similar, the legal arguments were potentially

     different.   I took the view that the merits of the additional ground could be

     material to the exercise of my discretion but that pragmatically it would be

     better to hear the argument before making a decision on the application to

     amend. In the circumstances, with the agreement of the parties, I deferred a

     decision on the application to amend until after I had heard the full submissions

     on the material before the Court.




Background


4.   The Claimant and his family live at 28 Hitchin Road, some 24 metres from the

     site of the proposed mast. His daughter suffers from neurological problems

     following brain injury and is in the house most of the time with the Claimant’s

     wife as her full time carer. The Claimant was and remains concerned about the

     neurological effects of microwave radiation from the proposed mast on his

     daughter and generally.




5.   The Third Defendant’s application for planning permission for the

     telecommunications mast was supported by a statement from its consultants.

     The statement included a declaration of conformity with the ICNIRP

     (“International Commission on Non-Ionising Radiation Protection”) guidelines.

     It explained:


                                         Page 3
                                                   Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                   (Admin)


           "Whilst having due regard to issues of public concern, however, it is
           important to note that emissions from the installation proposed will
           be well within the ICNIRP guidelines, referred to in the Stewart
           Report and in the revised Planning Policy Guidance
           “Telecommunications” (PPG8), and in this respect we would draw
           your attention to the site specific summary of RF EME (radio
           frequency electromagnetic energy levels) around the base station
           attached at Appendix C, and the Declaration of Conformity with
           ICNIRP attached at Appendix B.."


6.   Appendix C set out a “Summary of estimated RF EME levels” around the

     proposed base station (“the Site Specific Summary”). That comprised estimated

     levels for various distances from the base station with a comparison to the

     ICNIRP reference level.     The shortest distance was 50 metres, which gave a

     level some 20 times less than the ICNIRP reference level. At greater distances

     the margin below the reference level increased. It was explained that the levels

     of exposure increase or decline on an inverse-square relationship to the change

     in distance from the source, so that, for example, at half the distance, that is

     25 metres from the mast, the exposure level would be approximately one-fifth

     of the ICNIRP reference level.       The notes in Appendix C explained that the

     estimates were calculated at 1.5 metres above ground level and “assume a

     worst-case scenario” for reasons set out.



7.   It is convenient at this point to refer to PPG8, which the First Defendant

     published in 2001 setting out the Government’s policy for telecommunications,

     in part in response to the report by Sir William Stewart “Mobile Phones and

     Health”. Under the heading “Health Considerations”, it stated:

           "29. Health considerations and public concern can in principle be
           material considerations in determining applications for planning
           permission and prior approval. Whether such matters are material
           in a particular case is ultimately a matter for the courts. It is for the



                                         Page 4
                                                 Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                 (Admin)


          decision maker (usually the local planning authority) to determine
          what weight to attach to such considerations in any particular case.
          30. However, it is the Government’s firm view that the planning
          system is not the place for determining health safeguards. It remains
          central Government’s responsibility to decide what measures are
          necessary to protect public health. In the Government’s view, if a
          proposed mobile phone base station meets ICNIRP guidelines for
          public exposure, it should not be necessary for a local planning
          authority, in processing an application for planning permission or
          prior approval, to consider further the health aspects and concerns
          about them.
          31. The government’s acceptance of the precautionary approach
          recommended by the Stewart Group’s report “Mobile phones and
          health” is limited to the specific recommendations in the Group’s
          report and the Government’s response to them. The report does not
          provide any basis for precautionary actions beyond those already
          proposed. In the Government’s view, local planning authorities
          should not implement their own precautionary policies, e.g. by way
          of imposing a ban or moratorium on new telecommunications
          development or insisting on minimum distances between new
          telecommunications development and existing development."


8.   The PPG provides more detailed supporting guidance in an appendix. At

     paragraph 99 it advises that applications should include “a statement that self-

     certifies to the effect that the mobile phone base station when operational will

     meet the (ICNIRP) guidelines.”




9.   Returning to the Third Defendant’s application for planning permission, the

     Claimant made an objection to the Second Defendant, which included the

     exposure of his family to emissions from the proposed mast. In his objection the

     Claimant pointed out in respect of Appendix C that:

          “The estimated radiation figures provided are given for points 1.5
          metres above the ground whereas our bedroom windows are about 6
          metres above the ground so that even on their figures the intensity
          would be significantly higher and possibly close to the maximum
          permitted.”




                                       Page 5
                                                   Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                   (Admin)




10.   That led to a Specific Point Estimate from the Third Defendant of levels at the

      Claimant’s home, which was communicated to the Claimant in an email from

      the Second Defendant’s planning officer dated 4 August 2006 which stated:

           "Further to our conversations earlier, I have just received the
           following additional information from the applicant .... Please find
           attached the calculation of the Power Flux Density (PDF) levels at
           1st Floor Level (at a height of 4.5 metres) for 28 Hitchin Road. As
           can be seen, the predicted PDF levels will be 170 times less than the
           ICNIRP levels."


      The email attached a Specific Point Estimate for the location of the Claimant’s

      property, which set out the estimated level which, as the officer had indicated,

      would be 170 times less than the ICNIRP reference level. It confirmed that it

      was calculated at 4.5 metres above ground level and stated that it was “based on

      worst case assumptions and local terrain”.



11.   The application was reported to the Second Defendant’s Planning Committee on

      the 16 August 2006 with a recommendation for approval. The officer’s report

      recorded objections from third parties, including concerns over health risks. It

      referred to the advice in PPG8 and concluded:

           "As the ICNIRP certificate has been submitted with the application
           there is no further need in my opinion to consider the health aspects
           of the proposal."


12.   The Claimant attended the committee hearing and addressed the

      committee in respect of his concerns. He did not raise concerns over the

      estimated emission levels provided by the Third Defendant in respect of

      the ICNIRP guidelines.




                                         Page 6
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


13.   The application was refused on grounds of its effect on the conservation

      area and the absence of sufficient technical justification or site search

      results to justify the selection of the site as against alternatives. There was

      no ground relating to health concerns.




14.   The Third Defendant appealed. The appeal was dealt with by written

      representations.    The Third Defendant provided an appeal statement,

      which included at paragraph 4.4 the statement:

            "The government is of the view that the planning system is not the
            place to set health and safety safeguards and advises that where a
            site meets the ICNIRP standards on public exposure to emissions, no
            further consideration of the health risks ought to be necessary. A
            statement confirming that the proposal would be ICNIRP compliant
            was submitted with the planning application, a copy of which has
            been included in the Appeal Pack."


15.   The Appeal Pack included the certificate of compliance and also the supporting

      statement to which I have referred above, including the statement that levels

      would be well within ICNIRP guidelines and referring to the Site Specific

      Summary of RF EME levels in Appendix C. Appendix C was not, however,

      included as part of the Appeal Pack. It is accepted that Appendix C was not

      supplied to the Inspector as part of the appeal information.




16.   The Claimant made an objection to the Inspector, including concerns in respect

      “of the health risk due to fear of my daughter’s condition.” The objection did

      not include any challenge to the Third Defendant’s estimated exposure levels or

      in respect of compliance with the ICNIRP guidelines. Indeed, in this Court it

      has not been disputed that the proposal would comply with the ICNIRP


                                          Page 7
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


      guidelines. The Claimant’s challenge has focussed on the statement on behalf

      of the Third Defendant that the levels would be “well within” those guidelines.




17.   Following a site visit on the 5 February 2007, the Inspector gave her decision in

      a letter dated 13 February 2007. At paragraph 1 she set out her two main issues

      as the effect on the character and appearance of the conservation area and

      whether there were any available alternative sites which would have less

      environmental impact. She dealt with policy in paragraph 2. In paragraphs 3 to

      7 she set out her reasons for rejecting the objection in respect of the

      conservation area. In paragraphs 8 to 11 she dealt with the issue of alternative

      sites. That included at paragraph 8 reference to PPG8. At paragraph 10 she

      stated with reference to alternative sites:

            "… two others were replacement street lighting columns. I note that
            these have been discounted because they are very close to residential
            properties. I understand that the appeal proposal is a similar
            distance to residential properties. It is not for me to decide whether
            any of these alternatives would be acceptable, since to do so would
            be to usurp the statutory decision making process for any
            application on one of those sites. I have confined my assessment of
            these alternatives to consideration whether there is likely to be an
            alternative, which is materially less harmful than the proposal put
            before me. For the reasons given above, I have found that the
            appeal proposal would be readily assimilated into the street scene
            without causing harm to the character and appearance of the area."


18.   Under the heading “Other Considerations”, she continued at paragraph 12:

            "Considerable local concern has been expressed about the health
            implications of telecommunication masts. Reference has also been
            made to the findings of the Stewart Report. PPG8 explains that the
            Stewart Report suggested a number of precautionary actions, which
            were accepted by the government. It was considered that there was
            no basis to extend any of the precautionary actions. PPG8 advises
            that if a proposed mobile phone base station meets the ... (ICNIRP)
            guidelines for public exposure to radio waves it should not be
            necessary for a planning authority to consider further the health


                                           Page 8
                                                   Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                   (Admin)


            aspects of the proposal. In the case of this appeal, the appellants
            have confirmed that the power levels of the proposed installation
            would be within ICNIRP guidelines. Nevertheless, several local
            residents have raised objections on health grounds and I accept that
            their fears are relevant to my decision. On balance, however, and
            bearing in mind that there was little objective evidence to support
            local fears and the emissions from the mast will be well within the
            ICNIRP guidelines, I do not consider that local residents’ health
            concerns are sufficient to justify refusing approval."


19.   At paragraph 13 she considered concerns about the amenity of those living in

      the area. At paragraph 14 she continued:

            "I have considered the concerns about the health of the community
            in general, notably those living nearby at No. 28 Hitchin Road. As
            the maximum exposure level of the equipment would still fall within
            ICNIRP guidelines within the immediate vicinity of the proposed
            mast, I am of the opinion that there are no clear and convincing
            reasons to outweigh the thrust of government advice in this case and
            thus I find no reason to justify withholding approval. The council
            has not disputed the need for the proposed mast and I am of the view
            that the fear of health concerns does not outweigh the need for the
            facility. In conclusion on this matter, I consider that the proposal
            would not have an adverse effect on the living conditions of
            occupiers of nearby dwellings with particular reference to perceived
            health risks."


20.   She went on to consider other matters and reached her overall conclusion at

      paragraph 17 that the appeal should be allowed.




21.   Following the application by the Claimant under Section 288 of the 1990 Act to

      quash that decision, correspondence and discussions took place between the

      Claimant and the Third Defendant, reflected in the witness statements and other

      material now placed before this court. I do not propose to review that evidence

      at this point.   However, so far as material, I will refer to it in the course of

      dealing with the submissions and my consideration of the issues that arise.




                                         Page 9
                                                      Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                      (Admin)


Findings of Fact


22.   So far as necessary on the material before me, I find the following facts on the

      evidence before the Court:

      (i)    that, as certified by the Third Defendant and not challenged in this Court,

             the estimated emissions from the proposed base station would comply

             with the ICNIRP guidelines;

      (ii)   that the estimates in the Third Defendant’s Appendix C as the Site

             Specific Summary of RF EME levels was carried out in accordance with

             the assumptions and on the basis set out; the comparison with the ICNIRP

             guidelines properly reflected the estimated levels;

      (iii) that the Specific Point Estimate provided to the Claimant was carried out

             as described in the estimate (which was not the same as for the Site

             Specific Summary in Appendix C) and the comparison with the guidelines

             was again properly assessed;

      (iv) that, given the different basis for the two assessments, there was no

             inconsistency between the Site Specific Summary and the Specific Point

             Estimate; and

      (v)    that specific point estimates by the Claimant at 6 metres above ground

             level (while not accepted on behalf of the Third Defendant) showed at the

             highest a level some 60 times below the ICNIRP guidelines.




23.   I would add, with respect to the parties, that the material in the three bundles

      before the Court in my judgement goes well beyond what was necessary or

      proportionate for determination of the points of law in this case. I have in mind



                                            Page 10
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


      particularly the comments of Mr Justice Sullivan, as he then was, in R (on the

      application of Newsmith Stainless Limited) v. Secretary of State for

      Environment, Transport and the Regions 2001 EWHC Admin 74 at paragraph

      10 and generally.




The Law


24.   A substantive (as opposed to procedural) challenge under Section 288 is limited

      to a point of law. It does not admit review of the merits.



25.   By Section 70(1) of the 1990 Act, the decision maker is required to have regard

      to material considerations. That would include the obligation not to take into

      account considerations which are immaterial.




26.   The role of error of fact in administrative law was considered by the Court of

      Appeal in E v. Secretary of State for the Home Department 2004

      EWCA Civ 49, where Lord Justice Carnwath said at paragraph 66:

            "In our view the time has now come to accept that a mistake of fact
            giving rise to unfairness is a separate head of challenge in an appeal
            on a point of law, at least in the statutory context where the parties
            share an interest in cooperating to achieve the correct result.
            Asylum law is undoubtedly such an area. Without seeking to lay
            down a precise code the ordinary requirements for a finding of
            unfairness are apparent from the above analysis of the Criminal
            Injuries Compensation Board case. First, there must have been a
            mistake as to an existing fact, including a mistake as to the
            availability of evidence on a particular matter. Secondly, the fact or
            evidence must have been “established” in the sense that it was
            uncontentious and objectively verifiable. Thirdly, the appellant (or
            his advisers) must not have been responsible for the mistake.
            Fourthly, the mistake must have played a material (not necessarily
            decisive) part in the Tribunal’s reasoning."


                                          Page 11
                                                  Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                  (Admin)




27.   The question of disclosure has been helpfully considered by Wynn Williams J

      in Elizabeth Ely v. Secretary of State for Communities and Local Government

      2009 EWHC 660 (Admin).         At paragraph 40 Wynn Williams J rejected the

      contention that there was a general obligation of disclosure in the planning

      context. At paragraph 46 he continued:

           "While I have reached the conclusion that fairness does not demand
           that a general duty to disclose adverse facts is imposed upon every
           appellant in a planning appeal, that does not mean that a duty to
           disclose material facts which are adverse to the appellant’s
           proposals can never arise. It is impossible for me to lay down (or
           rather more accurately attempt to lay down) general principles
           about when a duty to disclose adverse factual material might arise.
           Each case must be considered on its own particular facts since
           fairness, as between the competing parties to a planning appeal, can
           only be judged upon the facts which are relevant to the particular
           case. However, it does seem to me to be possible to identify one
           class of case when a duty to disclose adverse factual material will, in
           all probability, arise. I refer to the situation where the appellant has
           chosen to give voluntary disclosure of a document containing factual
           material or voluntary disclosure of information in non-documentary
           form and his failure to disclose other documents or information
           would have the effect of misleading or even potentially misleading
           an inspector about the true nature of the disclosed material. In my
           judgment, the appellant cannot “pick and choose” what he discloses
           if the effect will be that the inspector will be misled about the effect
           of what has been disclosed."




28.   Finally, I should refer to the Court of Appeal decision in T-Mobile UK Limited

      & Others v. First Secretary of State and Harrogate Borough Council 2004

      EWCA Civ 1763, where Lord Justice Laws, with whom the other members of

      the Court agreed, said in respect of the application of PPG8:

           "21. The Inspector appears to have considered that his conclusion
           that the appeal proposal provided insufficient reassurance on health
           was consistent with Government policy, notwithstanding the


                                        Page 12
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


            proposal’s ample compliance with ICNIRP and an appropriate
            certificate having been given to that effect. That, in my judgment,
            was the error made by the Inspector which is central to this case.
            Such a conclusion in truth represented a departure from the policy.
            Although the Inspector, as I have said, might be entitled to take such
            a position, he would have to justify it as an exceptional course."


29.   In submissions before this Court it was accepted that the passages to which I

      have referred set out the principles to be applied to the facts of the present case.




Submissions


30.   On behalf of the Claimant Mr Paul Stookes submits that the Inspector did not

      have the Site Specific Summary contained in Appendix C, notwithstanding that

      it formed part of the original application; that was, he suggests, clearly material

      to her conclusions. As a result of it being withheld or omitted her conclusion

      that the emissions from the mast would be “well within” the ICNIRP guidelines

      was without adequate evidence, as was her conclusion that there was little

      objective evidence to support local fears.



31.   In the circumstances, if she had had the relevant information set out in

      Appendix C, she would then have seen that the levels were considerably in

      excess of those generally experienced from telecommunications masts such that

      she might have concluded that an exception should be made to the guidance in

      PPG8; that would have been consistent with her approach in paragraph 14 of the

      decision letter. It would also have potentially affected her conclusions in

      paragraph 12 that there was little objective evidence to support local fears on

      health grounds and that the emissions would be “well within” the guidelines.



                                          Page 13
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


      That might in turn have altered the balance she struck in concluding that those

      concerns were not sufficient to justify refusing approval.




32.   In support of these submissions, he draws attention to the fact that by

      extrapolation the Site Specific Summary would show a level in excess of 20%

      of the ICNIRP guidelines at the relevant distance from the mast to the

      Claimant’s home, which would be very considerably above those generally

      arising from such installations, as reflected in the Stewart Report.



33.   He submits that in the circumstances there was a duty of disclosure as to the Site

      Specific Summary estimates in Appendix C.                 That non-disclosure was

      potentially material to the Inspector’s decision as set out above, which in the

      circumstances led to unfairness to the Claimant.          For all those reasons, the

      decision on behalf of the First Defendant was unlawful.




34.   Mr James Strachan, who appears for the First Defendant, submits that the

      Inspector can be seen to have dealt fully with the issues put before her,

      notwithstanding that health issues were not a main issue. Non-compliance with

      the ICNIRP guidelines was not raised as an issue on the appeal or indeed

      contended as part of the present challenge, so that the relevant PPG 8 guidance

      was met. There was no submission made to the Inspector that an exception to

      that policy should be made because of the relationship between the estimated

      levels of emissions and the ICNIRP guidelines.




                                          Page 14
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


35.   There was no error of fact. The assessments made on behalf of the Third

      Defendant had not been shown to be in error but properly reflected the

      assumptions clearly set out in the estimates themselves. There was ample

      support for the statement by the Third Defendant that the levels were “well

      within” the ICNIRP guidelines.



36.   In the circumstances there was no non-disclosure in this respect in that the

      statement that the levels were well within the guidelines could not reasonably be

      described as misleading. At the time of the appeal the grounds of the Second

      Defendant had not included health factors and thereafter there was no challenge

      by any other party, including the Claimant, to the certificate or the statement

      that the levels were “well within” the guidelines. In those circumstances there

      was no obligation objectively or otherwise, for the Third Defendant or any other

      party to have produced Appendix C nor did its non-disclosure render the

      statement that the levels were well within the guidelines misleading or

      potentially misleading or otherwise unfair.



37.   On that evidence, the Inspector was fully entitled to accept the statement, which

      was unchallenged, that the levels were well within the guidelines and not to

      seek any further evidence in that respect. In any event the relevant estimates

      and their basis had been provided to the Claimant, but he did not make any

      point in that respect as part of his representations to the appeal. Although he

      may not in fact have been aware that Appendix C had not been submitted to the

      Inspector, that did not in the circumstances result in any unfairness, so far as the

      Claimant was concerned. There is no basis for saying that either the failure to



                                          Page 15
                                                   Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                   (Admin)


      take into account Appendix C directly or its non-availability was material. It is

      fanciful to suppose that, if the Inspector had seen Appendix C, she would not

      still have reached the same conclusions as to the balance taking into account

      that the emissions would be well within the ICNIRP guidelines and in respect of

      PPG 8. In effect what the Claimant was seeking to do through this challenge

      was to reopen the case on the merits, which was not open to him on a statutory

      challenge on a point of law.




38.   Mr Christopher Boyle, who appears for the Third Defendant, made submissions

      in line with those made on behalf of the First Defendant.                  The Second

      Defendant did not appear and was not represented.




Consideration


39.   The starting point for consideration is in my judgment the decision letter.

      Although it was not one of her main issues, it is clear that the Inspector

      specifically considered concerns raised by third parties about the health

      implications of the proposed telecommunications mast (see paragraph 12 of the

      decision letter). She accurately summarised the relevant advice in PPG8. She

      accepted that the proposed levels would be within the ICNIRP guidelines and

      therefore would meet the PPG8 policy requirement in that respect. She went on

      to consider local residents’ fears on health grounds but “on balance” concluded

      that local residents’ concerns were not sufficient to justify a refusal. For that

      she relied on (1) that there was little objective evidence to support local fears;

      and (2) that the emissions would be “well within” the ICNIRP guidelines. The


                                         Page 16
                                                      Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                      (Admin)


      former was a proper reflection of the evidence before her. The latter was

      supported by the unchallenged evidence comprised in the statement from the

      Third Defendant.




40.   When she returned to this issue at paragraph 14, she considered the specific

      concerns about health of the community in general and specifically in respect of

      those living at the Claimant’s home.         She noted that the maximum exposure

      would still be within ICNIRP guidelines in the immediate vicinity of the house.

      It is not suggested on the material before the Court that that conclusion was not

      open to her or inaccurate in that at the highest the Claimant’s evidence suggests

      a specific point estimate some 60 times below the guidelines, while the Site

      Specific Summary estimates indicated by extrapolation a level about five times

      below the guidelines.



41.   It was on that basis that she concluded that there were “no clear and convincing

      reasons to outweigh the thrust of Government advice in this case”. Thus she can

      be seen to have expressly considered the further question whether an exception

      to policy would be justified on the particular facts of the case and concluded that

      there was no basis for exception on the evidence that the levels would be within

      the ICNIRP guidelines at the relevant location.




42.   In those circumstances, Mr Stookes frankly recognises that to succeed he has to

      establish that with the additional information in Appendix C the Inspector’s

      conclusion as to whether an exception should be made or otherwise in respect of



                                         Page 17
                                                   Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                   (Admin)


      the balance she struck in this respect might have been different.                  In my

      judgment, there is no factual basis to support that conclusion.           The evidence

      before her would then have included Appendix C setting out levels which were,

      as described, well below the relevant guidelines. The Appendix also makes clear

      that the estimates were made on a robust basis.



43.   No evidence had been put before her to suggest that, because the levels in

      Appendix C exceeded the prevailing levels recorded in the Stewart report or

      elsewhere, that would justify rejection of the conclusion in the statement from

      the Third Defendant that they were well within the ICNIRP guidelines or

      otherwise give rise to a cause for concern.       There is in my judgement no

      warranty on the facts of this case to suppose that the Inspector might have, let

      alone should have, embarked on an investigation of her own to come to a

      conclusion along those lines.     The evidence in Appendix C was entirely

      consistent with the statement from the Third Defendant which was before her

      and in turn supported the conclusions which she set out in paragraphs 12 and 14

      of her decision letter. I am, in the circumstances, wholly unpersuaded that there

      is any basis for concluding that her decision might have been different in that

      respect.




44.   There was, in my judgment, no error of fact in this case. There was nothing on

      the evidence before this Court to suggest that the assessment set out in Appendix

      C was erroneous or that it was in any way inconsistent with the statement made

      by the Third Defendant and before the Inspector that the levels were well within




                                         Page 18
                                                    Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                    (Admin)


      the guidelines, either as a matter of straightforward English or as to their

      substantive implications.   In that respect, applying the tests in E:

           a. there was not here any relevant mistake as to “an existing fact”;

           b. there was no contrary fact or evidence not before the Inspector that

               would be “established” in the sense that it was uncontentious and

               objectively verifiable;

           c. I accept that the Claimant was not responsible for the omission of

               Appendix C; in that respect the third requirement would be met; and

           d. the omission of Appendix C played no material, let alone decisive, part

               in the Inspector’s reasoning or conclusions.




45.   As to non-disclosure, for the reasons set out above, in my judgment the omission

      of Appendix C did not have the effect of making the statement by the Third

      Defendant that the emissions would be “well within” the ICNIRP guidelines

      misleading or potentially misleading.        There was no reason why the Third

      Defendant should have provided Appendix C or any objective basis why its non-

      disclosure resulted in unfairness, so far as the Claimant was concerned or

      otherwise.



46.   In these circumstances, in my judgement, the claim fails, whether considered

      under Ground 1 as to the failure to have regard to a material consideration or the

      additional ground as to error of fact or non-disclosure.               Accordingly the

      application to add the additional ground should be refused as being plainly too

      late without any proper justification or counterbalancing merit. In any event, I




                                         Page 19
                                                   Cox v Secretary of State for CLG and ors 2010 EWHC 104
                                                                                                   (Admin)


      have made it clear that, even if the amendment had been allowed, I would have

      found against it.




47.   For all these reasons the application will be refused and the claim dismissed.




                                         Page 20

								
To top