Councillors Mull ‘Unprecedented’ Step In Lewes Phone Mast Scheme

Councillors have deferred a decision on a controversial 5G mast in Lewes, as they consider taking an “unprecedented” course of action.

On Wednesday (June 11), Lewes District Council’s planning committee considered an application seeking retrospective permission for an 18-metre tall monopole mast in Nevill Road.

The committee unanimously agreed to defer the proposal for further discussion at a later date.

This deferral was based on several factors, including requests for more information from the applicant, Cignal Infrastructure UK Ltd.

But councillors also instructed officers to seek legal advice around whether they could potentially decline to make any decision on the scheme at all.

Such a move was described as being “unprecedented” by the committee’s legal advisor Joanne Stone.

Ms Stone said:

“My job is to protect the council from legal action and therefore my strong advice to you would be if you are thinking of going down that course of action to get further legal advice, so any decision you do take is robust and free from challenge.

“I don’t think we should take a risk on this matter. If you want to take an unprecedented step then you ought to be getting detailed legal advice, which will be reported back to the committee.”

The mast has already been built, but has been at the centre of a contentious and complex planning debate for several years.

Such facilities are normally covered by permitted development rights, meaning they can usually be installed without gaining planning permission as long as the developer informs the local authority of its plans.

But, in this case, the mast was built in the wrong place — several metres to the south of its intended location. As a result of this discrepancy, the mast needs to secure retrospective planning permission to remain where it is.

The application considered by councillors had been the second attempt to secure this retrospective planning permission.

The first attempt had been refused by the council’s planning committee in October 2023, with councillors at the time rejecting the application on the grounds it was “harmful to the landscape character of the area and detrimental to visual amenity.”

The applicant had sought to appeal this decision, but a planning inspector dismissed their case in July last year.

Meeting papers note how the appeal dismissal had been based on one reason alone; the inspector had reached the view the applicant had not provided sufficient evidence to show the development did not have the “potential to be harmful to human health”.

In coming to this conclusion, the inspector noted how the applicant had incorrectly filled in an International Commission on Non-Ionizing Radiation Protection (ICNIRP) declaration.

This document is intended to set out how such developments comply with safety guidelines.

According to the planning inspector’s written decision, the applicant’s declaration did not include the correct company name.

It listed the applicant as Three UK Limited, the trading name of Hutchinson 3G UK Limited.

The applicant had in fact been CK Hutchison Networks (UK) Limited, a company which now goes by the name Cignal Infrastructure UK Ltd.

The inspector also said the declaration had insufficient information about the specific mast and site, describing the overall document as “highly inadequate”.

Several objectors have argued the current application has similar problems with its safety documentation.

Specifically, they argue the documentation does not properly take into account the site itself, noting the proximity of Wallands School and a nearby public footpath.

Objectors say these both fall within an “exclusion zone”, as result of the site’s topography.

In light of this argument from objectors, part of the deferral saw the committee direct officers to seek further information from the applicant around this element of the proposals.

Officers were also directed to seek information around the “need” for the mast, with councillors noting how the National Planning Policy Framework (NPPF) seeks to keep the number of phone masts to a “minimum”, while also providing adequate network coverage.

The committee also asked officers to prepare legal advice on whether it would be able to “decline to determine” the scheme.

Councillors suggested this could be a potential course of action as some had formed the view that the application was not materially different from the scheme which had already been refused.

This argument relies on powers provided by section 70a of the Town and County Planning Act 1990.

This piece of legislation allows councils to “decline to determine” applications, if it has refused very similar applications within the past two years.

The calls to use this legislative power were raised by Lewes town councillor Matthew Bird, who had been speaking as an objector and local resident.

Cllr Bird, a Green Party councillor who had formerly been a member of the district council’s cabinet, argued the application was “essentially the same” as the previous proposal, so the powers could apply.

This argument was taken up by Cllr Paul Keene (Green), a member of the planning committee.

He said:

“This is an application that has come back from an appeal to [the Planning Inspectorate], which was refused but has been slightly changed, I guess we could argue.

“There hasn’t really been much of a material change to the application through this whole process, other than a slight change to the certificate.

"I want to pick up on something that Cllr Bird mentioned; this committee has the power to, he said, not determine applications, which have not really any material change.”

He added:

“Aside from the possibility of refusing this, I think we should consider declining to determine this application.

"Legally … this would have the effect of the application just falling; we wouldn’t refuse it but it would just fall away.”

The suggestion led to a short recess to allow officers to consider their advice.

Following this recess, Ms Stone told members that it was “unprecedented” for a planning committee to make use of these powers, so doing so would be likely to result in a legal challenge.

According to government guidance, the powers granted through the legislation are intended to “inhibit the use of repeated applications that are submitted with the intention of, over time, reducing opposition to undesirable developments.”

The guidance does make clear that “they are not intended to prevent the submission of a similar application which has been altered in order to address objections to the previous application.”

In their report to the committee, officers note how the ICNIRP certificate had “been altered to address the planning inspector’s reason for dismissing the appeal.”

The report, which had recommended approval, also notes how the committee’s previous reason for refusal had not been supported by the appeal inspector.

The inspector had judged the visual impact could be sufficiently mitigated by painting the mast and its associated infrastructure a dark green.

This dark green painting had been part of the proposals considered in October 2023,  so would not be a change from the previous scheme.

It is currently unclear how long the deferral will take, although the planning committee is currently due to meet again on July 9. It is possible the application will return for further consideration during this meeting.

Notably, the application passed its statutory determination deadline (the date by which a local planning authority is legally obliged to make its decision) in April.

This means the applicant is likely to be currently able to lodge an appeal with the Planning Inspectorate on the grounds of non-determination.

If the council were to use the s70a powers, the applicant would not be able to appeal such a decision with the Planning Inspectorate. Instead, the matter would have to be resolved through a Judicial Review process, involving a High Court decision.

For further information see application reference SDNP/25/00266/FUL on the South Downs National Park Authority planning portal.