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The High Court has quashed an Inspector’s decision to allow an appeal by Hutchinson 3G (Three) to site a 5G mast in Coombe, Surrey and within the Coombe Wood Conservation Area (Murtagh v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2991 (Admin)). The decision is of note because it emphasises the need for an applicant to justify its site selection for a mast by reference to the possibility of using existing infrastructure. The application to the council, and subsequent appeal to the Secretary of State, sought prior approval to erect a 15m high monopole on Kingston Hill, Coombe, Surrey. The NPPF acknowledges that “Advanced, high quality and reliable communications infrastructure is essential for economic growth and social well-being” and states “decisions should support the expansion of electronic communications networks, including next generation mobile technology (such as 5G)”. However, it also states that the “number of radio and electronic communications masts, and the sites for such installations, should be kept to a minimum” and the “Use of existing masts, buildings and other structures for new electronic communications capability (including wireless) should be encouraged” (paragraph 115). Of importance to the present claim it stats that applications for prior approval “should be supported by the necessary evidence to justify the proposed development” to include “evidence that the applicant has explored the possibility of erecting existing antennas on an existing building, mast or other structure” (paragraph 117). This is the ‘sequential approach’. In the present case, the Claimant had opposed the prior approval application on the basis an existing mast existed 100 metres from the selected site. Both this, and the selected site, were outside the applicant’s “Desired Search Area”. The Inspector referred to the existing mast in the context of the location of the appeal site, however did not consider it in the context of it being a possible alternative site. The Court found that whilst the Inspector understood the sequential approach because he made reference to it, he failed to expressly consider it. The judge considered this was possibly because he did not consider it all; but in any event, as an issue specifically raised by the Claimant, this should have specifically been grappled with and therefore the decision was unlawful in this regard. Separately, the Court also found the Inspector unlawfully failed to consider the effect of the mast on an existing yew tree which was subject to a tree preservation order. The local plan provided that new development should “ensure that trees …covered by Tree Preservation Orders are not adversely affected”. The Secretary of State argued the tree was not a material consideration because there was a separate regime for protecting trees subject to a TPO. The Court referred to the case law which considered that just because environmental regulations may apply to a particular consideration, that does not prevent it being material (for example R v Bolton MBC ex p Kirkham [1998] Env LR 729). The judge determined the impact on the yew tree was a point that went to the siting of the mast, and one the Court should have dealt with. Leon Glenister appeared for the Claimant, instructed by Ricardo Gama of Leigh Day. The decision is available here.
