Friday, 18 January 2013

Antenna Planning Permission (UK Only)

A few weeks ago, the RSGB periodical 'RadCom' published a page of advice on the 'four year rule' within planning law.  It's the kind of advice it should run more often, in my view.

Most of us would like something like this.
So why would law-abiding operators wish to avoid planning?  Well, ideally, we don't!  What we would like is a planning system that doesn't confuse our hobby with 'telephone masts' (which no longer need permission!), and endlessly wrings its hands about 'safety', 'radiation' and 'approved antennas', none of which ought to be considered by a planning authority.

Before we get to the meat of planning, remember that you can do anything on your own land (that is otherwise lawful!) in terms of planning for 28 days of the year.  So if you only do a few contests and nothing else, this could be enough for you, provided your tower is down at all other times.  But for most, it's not enough.

And no, putting your antenna tower on a trailer does not allow you to escape planning if you use it permanently erected at home.  This case should put any 'pub opinions' to the contrary to rest, and provide ample evidence that prejudice against ham radio is very much alive and well.

There are permitted development rights in the UK that allow certain sizes and designs of structure to be installed without permission.  Sadly, the RSGB and the community in general have failed to lobby successfully for such rights in favour of amateur radio.  In short, the law should not make hams have to jump through more hoops to enjoy something that is an accepted part of modern life and a legitimate, educational pursuit.  But the policy makers have decided this isn't the way to go, so we are often forced to go underground to get anything like a half-decent antenna up in the air on our own property.

I agree with the RSGB article that the four year rule is your friend in many circumstances.  However, it can be a friendship hard to make, not least because it could lead the unwary into very expensive assumptions about what they will and will not 'get away' with in reality.  And four years is, in reality, quite a long time for nosy neighbours to stop themselves popping down the local council to moan.

So, what happens after four years has passed and your antenna has gone without complaint?  Crucially, the law states that "no enforcement action shall be taken" after this period.  See guidance here.  In very serious cases, which are very unlikely to apply to amateur radio installations, other legislation can be brought to bear to remove a structure, but in these cases, you must be compensated in full.

So, after four years, your unapproved structure will, in effect, become lawful on the basis that planning law can no longer be used to bring it down.  But you must have put it up in the open, without trying to hide it such that nobody knows it's there until you remove the covers, so to speak.  The classic and definitive recent case here related to the building of a house hidden behind a screen of hay bales.  The owner failed to win the case because he went against the very old legal principle that you must act openly and without hiding something to benefit from a developed right.  Obscuration by an existing structure such as a house, or by trees etc is very unlikely, bordering on certain not to meet the definition of 'hiding' anything deliberately.


You can apply for a certificate of lawfulness, presenting your case that it's been up for four years or more without complaint. In all likelihood, they will want evidence of this.  Typically, a council will go away and leave you alone if your neighbour makes a sworn statement on paper that your antennas have been up for at least four years.  Photos also help, but are not always definitive unless you include something that changes over time - more on that later.

Keep also in mind that three years and a few months might be enough for you to be left alone.  That's because legal processes are usually extremely slow, and it will take a long time to organise a case.  At this point, a council may decide there is little practical point in pursuing the matter, and may leave it there.  Some councils have 3.5 years as a practical working period for determining whether or not to pursue enforcement, but it's not universal. 

If you have managed to have a tower or other structure up for four years without a moan, I would personally never bring it up with a council, or apply for a certificate, simply because they seem to like launching into a fight, often fail to follow procedures, and refuse to properly consider the evidence.

There are many things to take into account if you are going to just stick something up without planning permission.  Firstly, if you live on a remote farm and maybe have some obscuring trees, then the chances are that nobody from the neighbourhood or the council will ever get a chance to see what you have.   But do remember that councils sometimes undertake aerial surveys for planning breaches, although these do tend to concentrate on holidays parks and such like.  I know, because I've worked on many surveys like that.  Antennas, even on the scale of HF beams, are not very evident from the air unless the sun catches them.

If you live somewhere like this (this place is not involved in any planning breach) where people don't go, then you are better placed to benefit from four years of peace to avoid planning rules.  But aerial planning surveys do take place!

In practice, I would expect people living out of sight of much of the surroundings to get away with just about anything in terms of planning.  Even so, it might be better to get a retractable or tiltable mast so that you can make it less obvious at times (and more easily service things!)  Provided you take plenty of photos when it is up, it will be very difficult if not impossible for the authority to prove it was not always up.  You are allowed to bring it down for maintenance without negating your claim for being up permanently, so you can always rely on the 'yes, but at the moment of that photo you took from the air, I was maintaining it, guv.'  Silly, but we are talking about a legal process, so evidence both ways does matter.

Photographic evidence is a good friend when it comes to the four year rule.  Normally, British justice requires the complainant to prove his case.  In practice, with issues like planning, it's up to the defendant to prove that what he claims - his stuff's been there for too long for any enforcement - is true.  That's why photos are essential and, in reality, one of the few sure means of showing the passage of time.  It also covers the possibility of your neighbours being perfectly OK with you antennas, but not wanting to sign any formal paperwork to support you, especially if others are against you.

If your antennas have not been up for four years, make life harder for planners and others by going to your property on 'Google Street View' and ensuring every last piece of the images is objected to on the grounds of privacy and/or security.  Google will then, after a time, blur your house.  You have to be quite persistent, because you will find other angles need to be objected to before the whole thing becomes blurred properly. It is still possible, though, that the council's licence to use Google Earth will permit them to see your house without the blurring.   If your antennas really have been up for four years and Google Earth proves it, then of course, you don't want to blur your house at all!  In many cases, Google Earth images are several years old - often more than four years - so an authority may not be able to rely on this resource to prove their case.

The RSGB advises you to date your antenna photos.  I would go much further.  Use something in the photo itself that changes over time and cannot reasonably be faked.  I used to stick my children in every photo including an antenna, because they change noticeably over a short period of time.  Such historical photos of children have successfully been used in planning appeal cases, so they are of proven worth.  Other things that change are manifold, but hedges, trees, the seasons (was it obviously winter or summer when you took the shot?), your cars (including their legible registration plate) and so on are all things that change more quickly than you think and that often have documents (scrapping and sale receipts, etc).  Include as many as you can, and don't just take a photo of the antenna and tower - that doesn't allow you to put it in a context in time or space!  If you ordered concrete to make a base, keep the receipt safely as evidence, together with datable images of it being poured.

If you get a 'friendly' visit,it may be time to negotiate.


Now, if you get a planning officer coming round for a supposedly friendly chat, someone, somewhere, will have made a complaint.  Councils are invariably too busy to roam the countryside, looking for every minor planning breach.  Guidance from government directs councils to use enforcement only as a last resort.  This is because enforcement is expensive and time-consuming.  If you have your antennas up all the time, maybe you can compromise and bring them down when not in use.  Maybe you can lower the tower.  Or even tilt it over.  Maybe the tower is only marginally higher than, say, the 4.5m or so allowed for other structures, and make the case to the council that it's not really worth getting into a froth about.

In the end, and whilst there will be awkward planners sometimes, most will just want to have a nice afternoon out and get rid of another potential source of work.  They have as much interest in not getting bogged-down in enforcement as you do, so bring out the tea and biscuits, and talk. 

You might even be tempted to go and ask your planning department for advice on antennas.  My advice?  Don't bother.  In most cases, planning officers haven't got a clue about antennas, are generally hostile to them (as are councillors), often because they link them to other things with masts like mobile phone towers and wind turbines!  You will only serve to make yourself known to them, with the fairly remote but possible outcome that some form of 'keeping an eye' on you will then take place.  If you think you have no option but to run the gauntlet of the full process, then of course that is the best thing to do.
If you live next to others, this kind of thing is almost inevitable - as is a complaint to the council.


If you live amongst hundreds of others, it's inevitable that you will come across those who are hell-bent on stopping anyone else doing anything like living their lives in a variety of different ways.  I recently came across a case where a local council had refused planning permission for a SteppIR beam because it chose to believe a crazy old woman's view that such an antenna needed to be approved, which she contended it was not, and that it ought to be erected on an RAF base, not in the community.  The council's own prejudices allowed them to accept such improper arguments, which ought never have been taken into consideration, let alone used as the basis for refusal.  I spoke to the local council about this, and it became clear that prejudices against the applicant played a major part in the refusal.  Again, this should not occur, but is often the result of local people who know one another being given power over others.

So, in the urban world, tread carefully.  Maybe spend a year or more putting up temporary fishing poles for simple verticals or loops.  See how it goes with the neighbours.  If it looks quiet, and there's no RFI, you may want to get a small, retractable mast with an antenna that reasonably fulfils your beaming dreams.  The critical thing, I think, is to hide it as much as possible, and always have in mind that you may have to bring it down altogether at some point.  That way, you won't spend stupid amounts of money on something that you may not be able to keep in the end.

On the other hand, if you put up a one element dipole, leave it there for four years, escape the planning requirement and then proudly go down the street, you'll find you won't be able to get away with putting up a bigger beam - you are claiming four years for what you have had up for four years, not what you wished you had!  However, there is room to argue in this situation that it is the tower/support that is the key planning issue, not the antenna itself.  That's because the test is whether a structure was "substantially complete" four years ago.  It's also difficult for people to tell the difference between a 3-element beam for 12m, and one for 15m, say.  So if you are 'upsizing', it could go unnoticed or be pointless to raise as a planning enforcement issue..

In a tolerant world, hams would have it much easier.  People don't have to go nuts when they see an antenna - we have become accustomed to antennas for over 100 years in the amateur world.  Unfortunately, the words 'mast' and 'electromagnetic radiation' have become synonymous with mobile phone masts which, until recently, caused mass hysteria whenever one went up.  The phone companies got around that stuff by getting a clause where they only have to notify authorities, not get permission from them about phone masts.  Interestingly, nobody seems to protest about phone masts any more.

An argument can be made - supported by some state lawyers, that wire dipoles do not constitute development - and so do not require planning permission.  But tread carefully and know your law!
 
One interesting snippet is that wire antennas were considered, when I asked Welsh Government lawyers, not to constitute development as conceived by planning law.  The basis of that view is quite long-winded, but I have looked at it myself and I can see where they are coming from quite easily.  Convincing your local planning officer about this, however, will be a much harder task!  An area of weakness in the argument is that wires may not need permission, but their supports probably do.  So try to use trees or existing supports to avoid this problem!

If you do run into trouble, certainly get in touch with the RSGB immediately - that is one of the benefits of membership.

UPDATE: 

Since 2009, a 'Harm Assessment' has been brought into force for dealing with alleged planning breaches by some, but certainly not all planning authorities.  Although this is not a licence to put up anything you like, it does provide clarity on how a breach will be dealt with, and importantly, it does not inevitably lead to any further action against you.  Its real aim is to quickly filter-out serious, as opposed to minor breaches that aren't particularly blighting an area, and avoid councils wasting money on pursuing things that would, if you applied, get planning permission anyway.  This approach has always been there in some form or another, but it's now more at the forefront of enforcement processes.

Like any such policy, there is always wriggle room.  The case officer can make a personal judgement as to whether, if you did apply for permission, you would get unconditional permission.  It's the unconditional bit that leaves amateurs less at benefit from this system than otherwise would be the case.  In many situations, there would likely be a condition of how often you can use the mast, how high it can be, what size antenna, etc, etc.  The more jobsworthy planning authorities will always find a reason why it would be a conditional and not unconditional approval, so justifying further enforcement action.  And it is, ultimately, a personal, subjective judgement, which you will find impossible to challenge unless somehow and obviously perverse.

Here is a copy of the policy, noting that not all authorities may apply it very well - or at all.  But you may want to ask for a formal response as to why one council uses this approach when others don't, mindful that the planning laws are meant to apply across England and Wales equally. 

I think councils are stretching their remit improperly when they threaten the spectre of "problems selling your house" without planning for an antenna.  Firstly, if you pull an unauthorised tower down before you sell, there's no problem to fall foul of!  Secondly, if it's been there for over four years and the Council never came round in all that time, it's to every practical purpose lawful and if you applied for a certificate of lawfulness, with good evidence of it being there for that period, then you'd invariably be given it with no further problem.  Personally, I wouldn't bother involving a planning authority for a certificate.  Read on for the best and cheapest way to proceed (not that this is in any sense advice, just information). 

You can buy a very cheap (about £40-£50) indemnity for your prospective purchasers if they query your antenna's (or anything else's) lawfulness, and from plenty of personal experience, know the offer of this will satisfy almost any lawyer acting on behalf of purchasers.  So, whilst councils may want to try and frighten you, it's best not to blink, knowing that it's in fact very unlikely you'll have any problems selling your house at all (the last time I had such minor problems, I sold the house for more than its asking price!)  Remember also that the presence of a tower can often increase the value of your house; there are many hams who sell their properties to other hams, who are often so obsessed with the hobby that they will pay handsomely for a ready-made radio station with planning permission or an installation that is lawful through the four year rule.

It's also become clear that some planning officers ask the home owner whether they have a licence to operate the radio.  That really isn't a matter for them, but OFCOM.  You may choose simply to say 'yes' if asked, but I would certainly also point out that licencing matters - and breaches - are not proper enforcement matters for any local council.  The same goes for health and safety issues that they often want to raise - planning law and appeal cases are very clear that these are not normally matters for planners.

Here's a useful summary from a solicitor specialising in planning law, although the advice does not tell the reader, as I think might be reasonable to do, that a simple and pocket-money insurance policy will get you out of any house-selling fix relating to most planning issues.  In the event that your stuff has been up for four years and the council don't seem able or likely to prove otherwise, or better still, that you can robustly show it has been up that long, there is, in the end, no legal need for you to have a planning certificate at all.

And if it all seems like too much, remember that a vertical antenna, or even a vertical beam, can often attract much less attention from neighbours and planners than horizontal yagis on big towers.  They also often put out better low angle DX signals.  Towers are expensive to buy, and become a bit of a burden for maintenance, insurance, etc.  There is certainly plenty of room to play radio without involving towers - or stubborn planning authorities!











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