Income from the siting of masts on Council owned land is currently small but there is a good potential for the generation of rental sums from this source; with each site capable of generating between £3,000 and £8,000 per annum.

The potential use of street lighting equipment for third generation transmitters is seen as a valuable source of income for the Council, which would be lost under the provisions of such a ban.

The Council is under a general fiduciary duty to obtain the best consideration from its assets and whilst this should not be an overarching consideration in any policy decision it may be that, if there is no sustainable reason to refuse the grant of an agreement to site a mast on Council property, there will be the potential for questions to be raised on this ground.

Bath and North East Somerset Council has a large and diverse property estate and this landholding offers the potential for the siting of a number of mobile phone masts in the future, especially with the increased general use of mobile phones and the introduction of third generation systems.

a. There is one mast erected at Broadlands Secondary School, Keynsham (which falls under the ownership of the Council) and one at Beechen Cliff Secondary school (which is a foundation school and therefore not owned by the Council.)

b. in Bath, there is an agreement in place for 12 small aerials on CCTV equipment (not yet installed);

c. BT are reported to have aspirations in this area to site third generation technology antennae on street lighting equipment, using a large number of small lower level antennae instead of fewer larger transmitters. This is in the early stages of discussion.

d. An executive report has been produced (Review of the Council's Policies for Dealing with all Phone Masts Proposals in the Light of National Developments, 15^th January 2003) which sets out the Council's position as a planning authority. The report states that, "...the Council as a planning authority must abide by the Government's Planning guidelines".

The Governments Planning guidelines state;

I. Pre-application discussions should be carried out between operators and local planning authorities on a specific development proposal, and should be set in the context of the operators' strategy for telecommunications development in the area.

II. Where a mast is to be installed on or near a school or college it is important that operators discuss the proposed development with the relevant body of the school or college concerned before submitting an application for planning permission.

III. High priority should be given to the need to safeguard areas of particular environmental importance. In areas of outstanding natural beauty developers must demonstrate there are no suitable alternative locations. A similar rule is applied to Green Belt areas.

IV. In certain circumstances a planning authority may allocate particular sites for major telecommunication development such as tall masts so as to encourage site sharing.

V. There is, however, a general duty on Local Authorities contained in paragraph 58 of PPG8.

Quote:  "Authorities may be able to reduce planning problems for applicants for telecommunication developments and for the community by helping applicants to identify existing and potential sites, by making suitable local authority owned property available to users and by encouraging others to do the same with their property."

Health Advice (Stewart Report) in respect of Mobile Phones and Base Stations is still inconclusive, but with underlying advice to have a precautionary approach. The Stewart Report, published in May 2000, which investigated the possible health effects posed by mobile phone technology - including base stations/masts, concluded: - "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 guidelines". Gaps in scientific knowledge, however, led the Stewart Group to recommend a precautionary approach to the use of mobile phones and base stations until more research findings became available.

There are particular public concerns with prolonged exposure to the emissions from mobile phone masts where a cumulative effect may be experienced and this is especially voiced in relationship to School-buildings places of work and residential areas. It is appropriate therefore to implement a general restriction on the siting of aerials on Council owned property that falls within a reasonable distance (say 100 metres) of these types of property use.

If in future a health risk is proven in respect of mobile phone mast emissions consideration must be given to a potential liability for any ill health suffered as a result of masts sited on Council property.

Any decision which the Council makes on the basis of Health and Safety concerns will need to undertaken with full regard to the best advice in this respect rather than on perceptions and prejudice. In particular consideration will have to be given as to whether the proposed ban is consistent with the precautionary approach recommended by the Stewart Report

The powers of public authorities are different from those of private persons, who have unfettered discretion. A public authority must act reasonably and in good faith and upon lawful and relevant grounds of public interest.

There are a number of statutory powers authorising the acquisition of land by the Council for particular purposes. If a particular piece of land is no longer required for the purpose for which it was acquired, the Council may appropriate it to another statutory purpose, although in some instances there are limitations to the use of the power of appropriation. Accordingly, the Council has acquired (or acquired, and then appropriated) land for such things as highways, public parks, public conveniences, leisure facilities, allotment gardens, and open spaces.

The least specific of the land-holding powers is Section 120(1) of the Local Government Act 1972. It states that:-

Arising by necessary implication from the power to "acquire" is the power to manage the land so acquired for the relevant purpose.

If the Council were to introduce a ban on telecommunication masts on its land, it would only be acting lawfully, even with regard to this most general of land-holding powers, if it could be satisfied that the statutory purpose for holding the land would be furthered by so doing. Personal dislike of such masts needs to be separated from belief, on reasonable and relevant grounds, that banning them would be for the benefit or improvement of the Council's area.

The broad scope of Section 120(1) means that pieces of land held by the Council under its provisions are being held for a variety of purposes. So, it would no more be lawful for the Council to say, without detailed consideration of the appropriate issues, "we will not allow masts on land we hold under Section 120(1)", than it would be to say "we will not allow masts on any land we own".

The following factors need to be borne in mind.

1. Any ban would be subject to contractual arrangements already made. If a lease does not prevent the erection of a mast on land let by the Council, a ban would not affect the position.

2. A ban could be lawful only if it were founded on relevant facts, not erroneous beliefs. If a ban could be justified on the basis of relevant facts, it would be necessary to assess whether it would be appropriate for particular areas of land on a case-by-case basis. It would then be necessary to establish how such a ban would further the statutory purpose for which the Council was holding each of those areas of land.

3. It is not possible to impose a more general ban and later seek a lawful basis for it if challenged in relation to a particular location. In such circumstances, the Council would clearly not have directed its mind to the appropriate statutory power.

Network Operators are accorded legal powers through the Telecommunications Act 1984. Under Schedule II of the Act, the mobile phone companies are given rights similar to those of Compulsory Purchase Orders. If a landowner rejects their approach to erect a transmitter on his/her property then a Operator can apply to the Courts to allow them to dispense with consent for that site and assess the financial recompense to be awarded to the landowner. Also under the provisions of the Act, terminating an existing agreement may not be sufficient to prevent the continued use of the site by the operator. It is possible therefore that, whilst a decision is made to refuse to locate a mast on Council land or remove an existing one, this may be frustrated by the use of these statutory powers.

Inquiries have been made of other Local Authorities Approaches to the granting of agreements for mobile phone masts on their land. A summary of the responses received is set out below.