Recently responding to a request from a West of England District Councillor Mast Action provided the following information regarding planning, masts and schools: -

Local Authorities have Statutory Duties imposed upon them by both the Education Acts and the Children's Acts. In particular Section 13 of the Education Act 1996 imposes general education responsibility by securing efficient primary and secondary education to meet the needs of the population in their area. Similarly Section 22(3)(a) and (3A) of the Children's Act 1989 imposes the duty of a Local Authority "to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child's educational achievement."

Accordingly while a child is in school the legislation places the Local Authority in the position of ‘being in loco parentis'. Both such Acts of Parliament are primary legislation and the Law in England and Wales. Under such Acts the Secretary of State may issue Regulations, which as secondary legislation will be issued by way of Statutory Instrument.

Planning Guidance Circulars and the Code of Best Practice issued by the office of the Deputy Prime Minister or the Department of Communities and Local Government are subservient to such Legislation and cannot overrule or contradict the law, as was made very clear by the Court of Appeal in its Judgments delivered on 17 May 2002 in the three education Guidance Circular cases of London Borough of Brent (2) and Oxfordshire County Council. The Court of Appeal stated:

"Guidance issued by the Secretary of State had to be kept in mind, but it was not direction and did not lay down rules to be strictly adhered to. The Guidance had to promote the statutory purposes and, since 2 October 2000 had to be Convention compliant".

Accordingly to comply with Articles 6 and 8 of the European Convention on Human Rights Local Planning Authorities considering planning or prior approval applications have to consider the Guidance contained in paragraphs 29 and 30 of Planning Policy Guidance Circular PPG8 in the light of the Local Authorities overriding statutory obligations relating to both children and the provision of their education and their welfare in Local Authority schools.

The precautionary approach advocated by the European Union in its February 2000 Communication , and also by Sir William Stewart in the Stewart Report on ‘Mobile Phones and Health' focussed particularly on the development of young children and possible adverse health impacts.

AAM

30.01.07