Statutory Nuisance of 5G masts

As 5G systems are experimental (whether it is the broad and expanding spectrum used, or the phased array signals), the impacted public can call a halt by triggering ‘measures’ available in law to protect public health from environmental hazards.  (see Annex Europa.EU)

Could Councils be drawn into addressing this two year old question ?

Question 25: pp 275-289 “In view of the growing social resistance to the deployment of 5G networks, in particular due to alleged health issues due to EMF emissions, please identify potential measures that could be taken by operators, competent authorities or national regulatory authorities (ie: Telecoms companies, local authorities and Ofcom) to address and mitigate such concerns and that could constitute best practices contributing to the timely deployment of 5G networks in line with the objectives of the Recommendation“

EU toolbox, Europa.EU

The question was raised because EU nation states including the UK have to ensure that public authorities dovetail their actions under the European Electronic Communications Code (EECC) as a legal framework within which public health protection against adverse effects of RFR exposures must be made imperative. So challenging the failure of a local planning authority to act competently when reconciling the public health and environmental effects of radio mast siting, is entirely legitimate.

So far this is not happening.  Local planning authorities (LPAs) frequently deny that they are regulating RFR exposures through development control decisions on radio mast siting, and GovUK are still keeping quiet about the required competent authority status of LPAs under the EECC. 

There are statutory tools used to address such issues (when a technology throws up new safety concerns that need addressing faster than regulation can catch up). Namely, Statutory Nuisance Complaints issued by a complainant (citizen/group) requiring a Council to investigate; and prior to doing so, issue a Non Conformance Report (NCR) to the Telecoms operator of a system causing the nuisance.

Telecoms Companies responsible for RFR emissions are required under ISO regulatory procedures relating to their Quality, Environmental, and Health and Safety responsibilities to facilitate ‘preventive public health protection’ 

Current guidelines are not sufficiently developed to protect the public from injury risk, harm and hazard posed by RFR emitting systems, it is therefore necessary for Telecoms companies to prove that their installations are safe by issuing risk assessments against evidence of significant risks of harm, injury and nuisance. Critically this assessment must take into account ALL current credible evidence, and not just the pronouncements of singular institutions such as the ICNIRP.

A Non Conformance Report, or Statutory Nuisance Complaint, both present arguments and evidence to demonstrate that existing RFR telecommunication equipment emit ‘effluvia’ as a nuisance that creates harm and risk of injury.

A Council is obliged to act at all times with due diligence to prevent and control industrial processes that threaten harm, hazards and risk of injury as nuisance (statutory or otherwise) – it cannot avoid those obligations.  It must exercise its pollution, prevention and control obligations through objective decision-making by applying pre-existing law. 

PROCEDURE

1 Public Interest Request. An initial step could be taken by the potential complainants to ask the Council’s Environment Health Department to act in the public interest by applying their powers under the Environmental Protection Act Section 79(1) (EPA 1990) in default of the LPA reconciling the public health/environmental effects of the mast as it should have done before granting planning permission to Telecoms to erect the 4G/5G mast.  

Simply, the Council would be asked to accept on evidence of harm, injury and nuisance that it is ‘the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with’.

The ‘case stated’ should be kept simple.  Minimally, it should include: 

i) an explanation of why the LPA failed to properly reconcile the public health and environmental effects created by the incompatible and unacceptable siting of the radio mast – referring to relevant objections made by the potential complainants or other members of the public prior to the decision to grant permission;

ii) the Non-Conformance Report (NCR) challenging the Telecoms to risk-assess their equipment against evidence of harm, injury and nuisance, and;

iii) recent scientific evidence of RFR effects on human health that are not protected against by ICNIRP guidelines, and further recent scientific evidence on harm created to the wider environment – this evidence could be backed-up with similar evidence that was submitted in response to the Telecoms original mast application.

(for sample letter query@rfinfo.co.uk )

2 If the Council refuse to meet their public interest obligations under the EPA 1990, they can also be challenged for not acting as an EECC competent authority at the planning stage. That twin default should be the subject of a formal Statutory Nuisance Complaint (SNC) to the Council to develop and reinforce the initial ‘case stated’ with evidence of the failures of the LPA, and more specific evidence of harm, injury and nuisance created by RFR as ‘effluvia’.

(for consultation support query@rfinfo.co.uk )

3 As an alternative to 2, or to enforce action, a case can be made to a Magistrate for the ‘abatement’ of the nuisance.  

The NCR is critical at all stages because it would allow the Council or the Magistrate making their final decision on the ‘case stated’, the SNC, or the claim made to the Magistrate, to rest upon how the responsible Telecoms company justified exposing the public and the environment to risk, harm, injury and nuisance.  

Telecoms brought the elephant into the room, and they should be made responsible for removing it!

What Politicians should be asking about 5G ?

Annex to Evidence to Parliament June 2020

1. How much independent research has been done to establish the safety of 5G on human health?
2. How much have telecommunication companies spent on research to investigate and anticipate the possible hazards to human health of 3G, 4G and 5G compared to the amount spent on its development and promotion? 
3. Is the “hype and excitement” of 5G dulling the critical faculties of policymakers/regulators?
4. If costs and benefits are not unfolding as predicted with the relatively simple roll out of smart meters, might that not also be the case for the much more complex 5G roll out?
5. Is the rush to roll out 5G likely to also produce cost escalations and defects; and would the more careful and less rushed roll out recommended by the EU paper (ref 4) be more appropriate?
6. Have the claimed benefits of 4 G (£75b by 2020^[1]) and of 5G (£175b by 2030^[2]); the costs of achieving these; and their distribution across interest groups, been independently scrutinised, using, inter alia, appropriate methods such as the risk-analysis approach (cf static CBA) adopted by the influential Stern/HM Treasury report on climate change^[3] ? 
7.  Is 5G now crowding out the innovations in Wire ⁽⁴⁾; photonics; and Visible light Communications? 
8. Would the promotion of a diversity of technological and social means for meeting current connectivity and data capacity needs be more resilient to inevitable “surprises”, help minimise oligopolies, and stimulate innovation ?
9. How can policymakers ensure that there is a broad and independent representation of relevant scientific disciplines on the risk assessment and exposure limit setting committees on which they rely?
10. In order to help overcome scientific and policy “silos” could there be a joint investigation/workshop by the CDMS, Health, and Environmental Audit Committees on the potential harm from EMF where independent scientists from the two main schools of thought (thermal v cell signalling paradigms) could present their evidence?
11. What would be the appropriate strength of evidence to justify a moratorium on 5G, given the strengthening evidence of harm from 2-4g and WiFi, and the near absence of research into possible harms from 5G?
12. Could such a moratorium serve to stimulate innovations in alternative ways of meeting data and connectivity needs?
13. How will policymakers avoid the latency lacunae in the case of mobile phones, and their 3, 4, and 5G systems, where rapid technical change will present this challenge very strongly? 
14. Why are these early and late warnings about hazards from EMF/RF not apparently being taken seriously by industry⁽⁵⁾ and regulatory authorities? Is history repeating itself through the failure to apply the precautionary principle to protect EMF?
15. Why does the insurance industry not provide cover for health and wildlife damage from mobile phones and related networks?
16. Why can governments not protect future taxpayers by using anticipatory insurance bonds/funds, or similar measures, as in other sectors with plausible long-term hazards, such as oil, mining and banking?
17. When would it be timely to apply the precautionary principle to RF and 5G, given that many personal exposure reduction measures can be simple and relatively inexpensive?
18. Would a temporary moratorium on the roll out of 5G be appropriate, pending the production of relevant research into its possible effects and the adoption of exposure limits that are protective of long term cumulative effects, especially in children and other sensitive groups?

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^[1] Capital Economics, 2013, see International Business Times, (July 2, 2014) https://www.ibtimes.co.uk/everything-everywhere-4g-network-t-mobile-orange-344384

^[2] HM Treasury report, UK Strategy and plan for 5G & Digitalisation – Driving economic growth and productivity”, (2017) p.28 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/597421/07.03.17_5G_strategy_-_for_publication.pdf

^[3] Stern, Nicholas. 2007. The Economics of Climate Change: The Stern Review. Cambridge, UK: Cambridge University Press

⁽⁴⁾ “The great telecommunications revolution of the 1990s was based on a notion of fibre-to-the-home (FTTH), an infrastructure that guaranteed everyone – whether in a big city or the rural heartland – equal access to the world-wide-web. It was introduced in 1999. In 2008, NASA conceives 5G wireless technology and the telecom industry quickly commercialized it, seeing it as an easier to implement and a cheaper option than FTTH”. Rosen D 2020 “The Great 5G Hype” https://www.counterpunch.org/2020/03/20/the-great-5g-hype/

⁽⁵⁾ Le Menestrel & Rode, “Why did business not react with precaution to early warnings?”, ch 25 in EEA, 2013.