“Sorry, we broke up – I'm on the mobile!” is an often-used excuse when people are making mobile calls. Most of us expect the convenience of making and receiving calls on the move all the time, without interruption and wherever we are. Yet, when it comes to building the network that allows us to make those calls, most of us have concerns.
The ‘not in my back yard’ attitude that most of us take when it comes to phone masts will come as no surprise. Phone masts have become an integral part of our lives. We see them on roof tops, peaking over tree tops in paddocks and meadows, and along motorways and railways. Aside from the visual impact they have on our environment, there are also the media reports about alleged phone mast health and safety concerns.
Electronic Communications code
Phone masts, like other buildings and developments, are subject to planning and development controls. Many applications for new masts face objections, especially if the plan is to locate them in or near a dense residential area, a school or a hospital.
Unless they own the land themselves, telecoms operators normally need to access land, buildings and other property belonging to other people to build, run and maintain their networks.
The Electronic Communications Code (the Code) applies to telecoms providers to whom OFCOM has applied the Code (Code Operators). The Code makes sure that Code Operators can build, run and maintain their networks as needed, if necessary, without having to obtain specific consents from landowners. Code Operators have extensive powers (Code Powers), including:
Once a network has been built, a landowner may issue a notice on the Code Operator to remove, move or alter the network or any related equipment. But again, the Code Operator may issue a counter notice refusing to do so and requiring the landowner to apply to the courts.
Code Powers are not without limitation. Conditions and restrictions may be attached to court orders made under the Code, such as concerning protection of the environment and obstruction of and damage to highways. Code Operators are also expected to share sites, masts and other equipment wherever possible. OFCOM enforces the Code, and may suspend, change or revoke Code Powers. Repeat offenders may have to pay penalties.
Since the introduction of the Communications Act 2003, which amended (and to a large extent repealed) the Telecommunications Act 1984, Code Powers may not only be granted to telecoms operators. Code Operators may now also be granted to providers of “conduit systems”, such as utility companies, as long as they make their ducts, subways, tubes or pipes available for telecoms use. There are currently some 145 Code Operators.
Issues may arise if an occupier of land is not the owner of the land. Where a tenant occupier, for example, has allowed a Code Operator to install equipment without the consent of the landlord, the landlord will not generally be bound. The Code Operators may have to restore the land to its original condition and may also have to pay compensation (for example, if there is depreciation of the land). Although a Code Operator may seek to keep the equipment on the land using its Code Powers, a court may be less sympathetic where the Code Operator has essentially entered and installed equipment on the land illegally. These issues may crop up, for example, in the case of customer-procured consents in relation to multi-tenanted land or buildings.
By the same token, landowners should not remove or try to remove telecoms equipment from their land without first seeking consent or, failing that, getting a court order, as this could make them liable for criminal damage.
Planning and PPG8
Aside from the issue of access to land, phone masts of more than 15 metres need full planning consent under the Town & Country Planning Act 1990. Phone mast of less than 15 metres and equipment on buildings do not need full planning consent and are normally dealt with as “permitted development” under the “prior approval process” under the Town & Country Planning (General Permitted Development) Order 1995. Under the Order, a local authority has 56 days from the day of the application to decide whether it needs prior approval and, if it does, to approve or refuse the application. The development can go ahead if the local authority tells the applicant that no prior approval is needed or if the local authority fails to respond either way within 56 days.
Based on information obtained through freedom of information requests, the BBC recently reported that some local authorities had failed to follow these processes correctly as a result of which phone masts had been given planning consent ‘by default’. Approval of a number of planning applications for masts measuring less than 15 metres were deemed to have been accepted as the local authority failed to reply on time.
There is specific planning policy guidance in the form of PPG8, which includes a self-certification process, under which all proposed phone masts are expected to comply with the safety guidelines set by the International Commission on Non-Ionising Radiation Protection. Provided these guidelines are observed, planning authorities need not consider any other health aspects of phone mast applications.
A new Bill was introduced into the House of Commons on 22 June 2005 aiming to amend certain planning controls to address health concerns. The Telecommunications Masts (Planning Control) Bill had its second reading on 3 March 2006. The debate has been adjourned to a provisional date of 20 October 2006. The Bill proposes some interesting changes. It introduces the concept of a “precautionary principle statement”, which means that every planning application must contain a statement describing the possible effects of installing the equipment concerned on the environment and on health. Similarly, each planning application would need to be accompanied by a "”Beam of Greatest Intensity Certificate”, providing information about exposure to radio frequency radiation. The Bill would amend the Code so that Code Operators would not get a court order to use land to install equipment if that land is used for educational or medical facilities. It would also introduce greater powers to require removal of telecoms equipment if land is used for educational or medical facilities. The meaning of “educational” or “medical” facility will clearly be critical to decide the rights concerned.
The Code was introduced to ensure that the general population has access to communications and, with that in mind, to allow telecoms operators to install, operate and maintain their networks. With competition in the telecoms market and public access to communications now being widespread, some have questioned whether telecoms operators need to run as many networks side-by-side. They query, in particular, whether it is necessary to have as many phone masts in different locations. However, regulators are keen to promote competition in the market and with the introduction of 3G and other ‘next generation’ communications, mobile telecoms operators need to build a significantly more dense network of masts. This is because 3G uses higher frequencies, requiring phone masts to be closer to one another to provide the same coverage as traditional GSM services. The 3G licences that operators bought from the UK government for £22.5bn in 2000, require them to roll-out their 3G networks to cover 80 per cent of the population by 2007. If they do not comply, they may not be allowed to use the 3G radio spectrum.
Site or mast sharing can go a long way in reducing the spread of phone masts. But there will be new locations where equipment may have to be installed to help operators achieve full coverage. One thing is certain: the continued rise in popularity of mobiles will mean phone masts are likely to remain the subject of reporting, public opposition and anxiety for a while to come.
Jan Willem van den Bos is a solicitor in the technology, media & telecoms team at Denton Wilde Sapte
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