Briefing on RFR and planning law

As recently as September 2020, Public Health England confirmed in guidance on ‘Mobile phone base stations: radio waves and health’ (paragraph 4) that the control of Radio Frequency Radiation (RFR),

occurs through product safety, health and safety legislation, health and safety legislation and planning policy. These regulatory areas all consider the international guidelines‘.

Planning policy is enacted in compliance with UK planning law.

Local Planning Authorities (LPAs) are regulating RFR exposures that pose risks of harm, injury or nuisance to the public by performing public health related functions that are interconnected with obligations of the Secretary of State for Health under the National Health Service Act 2006, including:

1A Duty as to improvement in quality of services

2A Secretary of State’s duty as to protection of public health

LPAs must act in accordance with their new obligations as a competent authority under the European Electronic Communications Code (particularly Recitals 106 and 110, and Article 45.2(h))

Section 2A creates reciprocal obligations between the Secretary of State for Health and LPA’s as EECC competent authorities as to how EECC Recital 110 is enacted in the authorisation of spectrum use through planning policy in accordance with EECC Article 45.2(h).

The EECC was transposed in to UK law in late December 2020 under the Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020, as Statutory Instrument 2020 no. 1419,

LPAs are also obliged in law to determining planning applications on material planning considerations.

The consideration ‘incompatible and unacceptable use of land or a building‘ must be determined by an LPA on evidence, as an autonomous public authority in compliance with UK planning law. That evidence may demonstrate that public health being made imperative, as required under EECC 2018 Recital 110, is not in fact accomplished since the risk of harm, injury and nuisance to the public warrants the refusal of a proposal/planned civil works for the siting telecommunications equipment.

Whether or not a radio mast application requires ‘prior’ or ‘full’ planning approval, the Local Planning Authority (LPA) will have to:

‘assess the siting and appearance of the proposed structure in relation to its immediate and surrounding context’.

Objectors may raise concerns such as:

  • long-term health concerns to humans and wildlife
  • proximity to homes, hospitals and schools
  • ICNIRP safety standards are not good enough

Such concerns would be indicative of substantial siting issues that the LPA would have to take properly into account to determine whether a ‘prior’ approval application: firstly, requires permission for prior approval; and secondly, whether or not permission should be granted.

On a ‘full’ application for planning permission, the substantial siting issues would have to be addressed by the LPA in exactly the same way as for a ‘prior’ approval application.

In either circumstances, the siting objections would be addressed as indicative of an incompatible and unacceptable use material planning consideration.

Addressing such siting objections falls squarely within the remit of the LPA to address that specific material planning consideration under Section 70.2 (c) of the Town and Country Planning Act 1990, and to determine radio mast applications taking properly into account all relevant evidence of the compatibility or incompatibility of use of land or buildings to mount the,

‘proposed structure in relation to its immediate and surrounding context’.

NPPF is just guidance and advice, as Lord Gill says in the Supreme Court judgment in Suffolk Coastal District Council v Hopkins Homes Ltd,

“the guidance given by the Framework (the NPPF) is not to be interpreted as if it were a statute”

The LPA dilemma – conflicting policies

Planning Authorities are expected to follow guidance contained in NPPF Section 10, on ‘Supporting high quality communications’.

‘118. Local planning authorities must determine applications on planning grounds only. They should not seek to prevent competition between different operators, question the need for an electronic communications system, or set health safeguards different from the International Commission guidelines for public exposure’.

It is untrue that the health impacts of an RFR emiting mast is not a siting issue.  No ‘siting’ issue for a mast is more significant, and Section 15 para 185 of the NPPF demonstrates that the health effects of a polluting technology, when used as an objection alongside evidence of such effects, has to be addressed as a ‘material planning consideration’.

185. ‘Planning policies and decisions should also ensure that new development is appropriate for its location taking into account the likely effects (including cumulative effects) of pollution on health, living conditions and the natural environment, as well as the potential sensitivity of the site or the wider area to impacts that could arise from the development’

See here for guidance on material planning considerations

How planners and Councillors ‘control exposures’, constrained as they are by paragraph 118 of the NPPF, presents a Council with a serious dilemma if objectors argue the case for paragraph 185 of the NPPF applying equally. Planning policy under paragraph 185, aims to protect the public from the health effects of pollutants by eliminating their cause as an ‘incompatible or unacceptable use’ of land, or a building.

Objectors should argue that rejecting a mast/antennae proposal because of its polluting effects (health grounds being a siting issue), does not involve the Council setting, ‘health safeguards different from the International Commission guidelines for public exposure’ – as they haven’t got the expertise to do so.

The applicants’ ICNIRP certificate is issued by the applicant as evidence of compatibility with the existing uses of land and buildings in the relevant locality (ie the immediate and surrounding context). That certificate as evidence, has to be considered alongside objections/evidence of adverse health effects as evidence of incompatibility.

The LPA have to weigh one set of evidence against the other to make a decisive decision on the incompatible and unacceptable use material planning consideration, and in doing so decide whether the proposed use of the land or building being used to mount the radio mast is acceptable or not.

The LPA in making that determination has to take due account of national or local policies relevant to the specific siting of the radio mast, to analyse the incompatibility and unacceptable use material planning consideration.

Such policies are not additional material planning considerations, rather they are partial evidence of potential compatibility or incompatibility.

Relevant policies have to be applied to the specific circumstance that the LPA is required to assess under Section 70.2 (c) of the Town and Country Planning Act 1990.  They must be balanced against all relevant evidence made available to the LPA to determine the compatibility or incompatibility of the proposed use in relation to the ‘immediate and surrounding context’, being diverse uses of land and buildings affected by the proposal.  

The LPA will use the evidence to determine as objectively as possible, whether or not the proposed siting of the radio mast is acceptable as they are required to assess siting when considering both ‘prior’ or ‘full’ approval mast applications’.

It is undeniable in planning law that policy, whether derived from the NPPF or guidance is challengeable legally if it interferes with a LPA making a decision on material planning considerations, ie the Court is intervening to prevent blanket operation of the policy/guidance to the detriment of the people who would suffer an adverse impact!

Link to NPPF doc, updated July 2021

RFR as a pollutant

All sites (and wider areas) are sensitive when human beings who live close by, or use them, are affected by pollutants.

Likely ‘cumulative effects’ of RFR are well researched, and the paragraph requires them to be taken seriously beyond the 6 min exposure to the heating effects which is retained as the ‘scientific’ foundation for ICNIRP guidelines. 

2021: this ‘science’ has now been soundly challenged:

RFR emitting masts generate 24/7 exposures.

  • exposures will impact on ‘living conditions’, particularly in residential areas, near schools or in town or city centres!
  • how are these effects going to be ‘taken into account,’ by whom, and to what depth, to determine safety?
  • what effect will the exposures have on wildlife?

Emma Gomez, a member of the public, questioned Public Health England (PHE) guidance on the safety of RFR ‘cumulative effects’,

‘these guidelines that you speak of do not include constant exposure levels and therefore are not adequate guidelines. As 3G, 4G and 5G are giving constant exposure the precautionary principle needs to be adhered to and new guidelines need to be established and the 5g rollout needs to be ceased immediately’.  

Here’s PHE’s response:

The ‘RFR is a pollutant’ argument is only answerable by requiring Telecoms to risk assess their proposed roll-outs against the evidence of non-thermal effects, and/or by responsible authorities activating the ‘precautionary principle’ in the absence of proof of safety.

The roll-out of 5G is unsafe at any speed. We have problems enough with 4G and 4G+

What is an industrial pollutant

A polluting technology that has demonstrable toxicity impacts on human health, and threatens environmental damage, cannot be sustainable. The National Planning Policy Framework (NPPF) is intended to balance economic, social and environmental sustainability objectives to create ‘net gains’ for the public (reference section 2). The sustainability of high-quality digital infrastructure’ that the NPPF promotes, will not provide any gain if it brings in its wake unacceptable risks to human health, the environment generally, and threatens damage to wildlife, insects and plants.

RFR emissions can be described as ‘effluvia’. As an airborne substance RFR emissions ‘have been proven to possess carcinogenic or mutagenic properties or properties which may affect reproduction via the air’.

This can be demonstrated with reference to the EUROPAEM guidance as below – EUROPAEM provides clinical guidance on Electro-Magnetic Hypersensitivity, and growing concern about the disabling effects of RFR on human welfare.

Clauses (a) and (d) of Section 79(1) of the Environmental Protection Act 1990, require local authorities to act to address as ‘statutory nuisances’ arising from,

(a) any premises in such a state as to be prejudicial to health or a nuisance,


(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health and a nuisance.

‘Effluvia’ includes ‘vapours, invisible particles or auras’.

The Pollution Prevention and Control Act 1999, in Section 1(3), defines ‘environmental pollution’ as,

‘pollution of the air, water or land which may give rise to any harm … (to include) … (a) pollution caused by noise, heat or vibrations or any other kind of release of energy, and by ‘air’ includes air within buildings and air within other natural or man-made structures above or below ground’.

These are ‘cover all definitions’ that are wide open to interpretation.   A stand alone telecommunication mast is arguably included in an ‘any premises’ definition, and the ‘release of energy’ into the air, as RFR broadcast ‘effluvia’, describes exposures that objectors can easily evidence as being ‘prejudicial to health and a nuisance’.

Ultimately, what is polluting depends on the toxicity of substances broadcast as RFR exposures.  The Europe-wide Pollution Protection and Control regime regulates ‘substances and mixtures which have been proven to possess carcinogenic or mutagenic properties or properties which may affect reproduction via the air’. Amongst other forms of toxicity.

On the previous Step by Step page we have the Document and Buttons to pages of scientific studies.

Regards one of the sources: a reliable starting point for exploring the polluting effects of RFR exposure is the ‘EUROPAEM EMF Guideline 2016 for the prevention, diagnosis and treatment of EMF-related health problems and illnesses’2016, Belyaev et al.

(Go to the ‘full text link’ in the right hand corner of the abstract)

The guideline presents: a clinical framework for understanding the causes of injury risk/harm caused by RFR, and how to diagnose, treat, and possible ways of mitigating  illness/injury.

The guideline describes: the carcinogenic effects of RFR pollution (page 5); the genotoxic effects, particularly DNA damage and the impairment of DNA repair mechanisms (page 6); neurological effects(page 7); and the effects of the pollutants on infertility and reproduction (page 9).

The guideline reports on: the health consequences of electro-magnetic hypersensitivity (pages 9 to 22); treatment strategies for EMF-related illnesses including EHS (page 13); the measurement of EMF exposure (page 17); and, on reduction/preventative strategies (page 20).  

Joel Moskowitz’ ‘Key Cell Phone Radiation Research Studies’ includes updated studies:

  • National Toxicology Program cell phone radiation studies
  • Tumor risk review papers
  • Tumor risk studies
  • Breast cancer
  • Brain tumor incidence trends
  • Mechanisms
  • Reproductive Health Effects
  • Electromagnetic Hypersensitivity
  • Exposure
  • Genetic Effects
  • Blood-Brain Barrier Studies
  • 5G and Millimeter Wave Studies