The Government is being urged to close a legal loophole which allowed a mobile phone mast to be sited 50 yards yards from a Birmingham infants school without planning permission being sought.
Phone company O2 won the right to attach telecommunications antennae to a CCTV mast overlooking St Nicholas Junior and Infants School at Sutton Coldfield, despite the opposition of Birmingham City Council.
The company's victory flies in the face of council planning policy, which seeks to resist the siting of phone masts in sensitive locations near to schools and houses.
Council officials admitted defeat after a two-year battle, which began in January 2004 when planning permission was granted to place three 13 metre CCTV camera support columns in the grounds of Concorde House, at Boldmere.
Concorde House is owned by Arden Acquisition and Planning Ltd - telecommunications consultants acting on behalf of mobile phone companies.
Shortly after being installed, one of the columns was replaced by a wider column and an O2 mobile phone mast was attached underneath the CCTV camera. Planning permission was not applied for.
The mast was removed after the council threatened legal action.
In the summer of 2005, O2 invoked emergency powers under the Town and Country Planning (General Permitted Development) Order, which allows a telecommunications operator to install a mobile phone mast for a period of six months where the equipment has become unserviceable. O2 installed a trailer-based mast at the rear of Concorde House.
The council again threatened legal action, claiming that the new mast could not have had consent since it was replacing an unauthorised installation. The matter went to planning appeal, where the council lost.
The council, having sought legal advice, decided to take no further action.
The advice of counsel was that the installation was permitted development because the column fell within the definition of a structure and that mobile phone companies are allowed to install antennae without gaining planning permission.
Clive Dutton, director of planning and regeneration at the council, is urging the Government to change the law.
"This installation clearly circumvents the policy guideline which discourages mobile phone installations being sited adjacent to educational institutions."