In recent times, several advertisement companies which are registered as operators of an electronic communications network have taken advantage of a perceived loophole in the general permitted development rights for new public telephone kiosks. The benefit is that they can then sell advertisements in highly visible locations.
The High Court in Westminster City Council v Secretary of State for Housing Communities And Local Government [2019] EWHC 176 (Admin) recently examined the lawfulness of this perceived loophole. Its analysis and conclusion provide usual guidance on how to interpret the classes of development permitted by the Town and Country Planning (General Permitted Development) (England) Order 2015.
Background
The facts are relatively simple. The electronic communications network operator (and advertiser), New World Payphones Ltd, had applied to Westminster City Council for prior approval of several new telephone kiosks under Part 16 Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015.
Part 16 Class A permits the following development:
A. Development by or on behalf of an electronic communications code operator for the purpose of the operator’s electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code consisting of – (a) the installation, alteration or replacement of any electronic communications apparatus….”
Paragraph A.3 of this Class A requires the developer of certain works, including a telephone box, to apply to the local planning authority for a determination on whether the prior approval of the authority is required as to the siting and appearance of such development.
The Council had refused prior approval for the new telephone kiosks but this was granted on appeal. The inspector’s decision was judicially reviewed by the council.
Decision
The High Court quashed the prior approval granted by the inspector. It found that the new telephone kiosks were outside the relevant development Class A, which permitted works for purposes related ‘only’ to the operator’s electronic communications network. Dual planning purposes which are not ancillary or incidental to each other, such as telephone kiosks with advertisement, were considered by the Court outside the scope of the permitted development class.
In particular, Mr Justice Ouseley noted the following on the application and interpretation of the permitted development classes in the GPDO:
“In my view, that means that the whole development for which prior approval is sought must fall within the Class relied on, and no part of it can fall outside it. Otherwise, the general permission in the GPDO, and the restricted range of considerations would be applied to development which falls outside the scope of the permission. This is in line with the language of Keenan, at [33] and [35], in which Lindblom LJ referred to the need for a development to fall “fully” or “squarely” within the applicable class of the GPDO in order for permission to be granted by it”.
On the specific development class and the facts of the case itself, Mr Justice Ouseley commented:
“A development therefore falls outside the scope of Class A Part 16 if it is not “for the purpose” of the operator’s network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO … A development which is partly “for the purpose” of the operator’s network, and partly for some other purpose, is not a development “for the purpose” of the operator’s network, precisely because it is for something else as well. The single dual purpose development must be judged as a whole.
…
I do not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose. Part of its purpose was for the operator’s network, as a telephone kiosk. Part of it was to be the electrified advertising panel. The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant. It does not matter whether it would have been lit if no advertisements were displayed. No relative significance has to be attributed to either part of the dual purpose; it is sufficient if the two purposes exist without the advertising use being ancillary or incidental or of no legal significance”.
Lesson
When considering the interpretation and relevance of development classes under the GPDO, it is important to assess such class as a whole against the proposed development so as to ensure it falls entirely within such class only.
