| Date | 8 June 2005 |
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| Judgment | Petursson v Hutchison 3G UK Limited, TCC 9 May 2005 |
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| The Issue | Objections under the Telecommunications Act 1984 for the siting of mobile telephone communications masts. |
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| Implication |
As yet the "hard" scientific evidence is that there is no general risk to the health of people living near mobile phone base stations. In the absence of objective evidence to the contrary, proceedings for compensation or removal of telephone masts are likely to fail. |
printThe 1984 Telecommunications Act contains a Code which allows individuals to apply to the court to object to the installation of a mobile phone antenna where it can be shown that the antenna "appears materially to prejudice the applicant's enjoyment of, or interest in, the land . . .". This Code was examined in detail in the recent case of Petursson v Hutchison 3G. Mr Petursson and his family lived at a property in London Road, Worcester. Mr Petursson began protesting about the proposed installation of a mobile phone base station for third generation (3G) telecommunications as soon as he learned of Hutchison's plans to install the station on the adjacent building. He organised a petition against the installation and when Hutchison made an application for planning permission, Petursson objected. Worcester City Council granted planning permission in January 2003 and despite Mr Petursson's continued objections, installation of the equipment was completed in August of that year. Hutchison attempted to allay Mr Petursson's fears. It drew his attention to the report published by the Independent Expert Group on mobile phones led by Sir William Stewart to the effect that "the balance of evidence indicates that there is no general risk to the health of people living near base stations on the basis that exposures are expected to be small fractions of the guidelines". Nevertheless, Petursson and his family gave evidence that soon after installation of the apparatus, they had experienced a sense of disorientation and difficulties in concentration. They also complained of nausea and dizziness throughout the day, peaking in the afternoon when they believed the traffic from the antenna was at its heaviest. Mr Petursson's wife gave evidence that she had experienced violent headaches, loss of appetite, nausea, lack of concentration and sleeplessness. The Peturssons' cocker spaniel dog, Floppy, also apparently suffered ill effects from emissions. The Peturssons said that he had demonstrated changes in behaviour with loss of appetite, howling in the night and avoidance of some rooms in the property. Mr Petursson took steps to try to protect the property by fitting metal netting to the walls of the house adjacent to the apparatus and hanging nickel-coated curtains, which he earthed. He purchased an instrument to measure the emissions from the mast and the family took to wearing foil hats when they were at home. They kept a log recording matters relevant to the base station. Eventually, in February 2004, the Peturssons moved to a different house and in August of that year sold their property in Worcester. Despite this, they continued with their action against Hutchison. Initially they claimed damages for personal injury and for diminution in the value of their property. Those claims for damages were abandoned before trial. Proceedings were however continued for the removal of the apparatus from the adjacent building. Judge Francis Kirkham first had to consider whether the Peturssons were entitled to seek such an order in circumstances where they had disposed of their interest in the property. She noted that the Code did not contain a requirement that the person making the application must own or occupy the land at the time of making the application. Accordingly, even though the Peturssons no longer owned or occupied the property, if the proceedings had been validly commenced, the court could grant the objection. However, whilst the Peturssons might have been entitled to claim compensation, Judge Kirkham concluded that they were no longer entitled to seek an order that the apparatus be removed. Now that the property had been sold the Peturssons could no longer demonstrate that the apparatus "appeared materially to prejudice their enjoyment of the property". On that basis alone, the Peturssons' claim would fail, but Judge Kirkham went on to evaluate the evidence concerning the Peturssons' deteriorating health. Both parties instructed experts who provided extensive evidence to the court. The experts agreed that the Hutchison base station complied with international guidelines and that the conclusion of all international scientific review bodies was that there was no general risk to health by the emissions from the antenna. Despite this, the Peturssons' expert gave evidence that the current safety guidelines were insufficient in that they were concerned only with the thermal influence that the emissions might bring. These guidelines did not allow fully for current gaps in scientific knowledge and particularly for the possibility of as yet unrecognised effects at emission levels below the guideline values. He criticised that the guidelines ignored the existence of sensitivities upon the body and that GSM signals could operate at frequencies which might interfere with natural electrical bio-rhythms within the body. Judge Kirkham was unimpressed with this evidence, She drew attention to a paper submitted to the European Parliament by a committee of scientists in which it was stated that the opinions of the Peturssons' expert were of dubious scientific value and did not reflect the view of the majority of the accepted scientific experts in the field. Judge Kirkham concluded that there was no evidence to support the Peturssons' case except their own perception of harm, which was subjective. It was quite possible that the feelings experienced by the Peturssons were psychosomatic and accordingly the Peturssons' claim was dismissed.
CJ-0522
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