by Ludwik Allerhand
As the telecommunications revolution continues apace more and more occupiers will be demanding that their buildings are able to accommodate the necessary apparatus. The vast majority of this apparatus (at least that fixed on the outside of buildings) will require planning permission, and we can expect that a growing number of developers, owners and occupiers will be turning to their surveyors and solicitors for advice in this specialised field.
At the time of writing the Department of the Environment is preparing to issue a consultation paper on the telecommunications aspects of the General Development Order (GDO). The permitted development rights (PD rights) relating to telecommunications apparatus fall into three categories:
(1)Those relating to dwelling-houses;
(2)Those granted to persons operating under the Telecommunications Act 1984 (Telecommunications code system operators or TCSOs);
(3)”Other” telecommunications development, eg apparatus installed on commercial premises and blocks of flats.
The major growth in the telecommunications market will come from non-TCSOs and it is likely that it will be the non-TCSO parts of the GDO which will be the main subject of scrutiny as a result of the consultation paper. Accordingly, it is those parts of the GDO which will be examined in this article.
Dwelling-houses
It should be noted at the outset that the definition of “dwelling-house” specifically excludes flats and buildings containing one or more flats. As a rule of thumb, if a dwelling does not occupy all floors of the building it will be treated as a flat and not a dwelling-house.
(a)At present the GDO authorises the installation, alteration or replacement of a satellite antenna on a dwelling-house or within the curtilage of a dwelling-house provided that:
(b)the size of the antenna (excluding any projecting feed element) when measured in any dimension does not exceed 90 cms;
(c)there are no other satellite antennas on the dwelling-house or within its curtilage; and
the highest part of the antenna to be installed on a dwelling-house must be no higher than the highest part of the roof on which it would be installed.
Although these provisions seem very straight-forward, certain points should be stressed. First and foremost, these PD rights apply only to dwelling-houses and not to flats or blocks of flats. Furthermore, they apply only to satellite antennas and not antennas which receive signals directly from other land-based apparatus (ie a “terrestrial microwave antenna”). I am not aware, however, of any substantial land-use planning argument which could support such technical discrimination. Even if a local planning authority recognised a terrestrial microwave antenna what grounds would it have for taking enforcement action or refusing an application when a satellite antenna in the same location would be just as obtrusive?
The height restriction has been the subject of some discussion, and its wording should be examined with care. The GDO provides that development is not permitted if “the highest part of the antenna to be installed on a dwelling-house would be higher than the highest part of the roof on which it would be installed”.
It does not say “the highest part of the roof of the building on which it would be installed”. Therefore it can be argued that where the satellite antenna is installed on a dwelling-house the height restriction applies only where the antenna is installed on the roof itself and not, say, on a chimney stack. This interpretation has been disputed, but the wording of the GDO appears clear. In any event the courts customarily give landowners the benefit of the doubt where statutory provisions are ambiguous.
One aspect of the height restriction which is certainly unambiguous is the fact that the PD rights relate to antennas on dwelling-houses and within the curtilage of dwelling-houses. The height restriction applies only to antennas installed on dwelling-houses. Therefore if there is an existing (authorised) building or structure within the curtilage (eg a mast on existing outbuildings) the antenna may be installed upon that without any height restriction applying. It should be noted that the definition of “satellite antenna” includes any mountings or brackets attached to such apparatus. Accordingly it would appear that the mountings are limited to a maximum length of 90 cms.
Commercial and other domestic telecommunications development
While demand for satellite equipment is likely to be substantial in the domestic sector, it is most likely that it will be the commercial user who seeks advice from his surveyor or solicitor. Commercial users are granted quite wide-ranging rights though the restrictions are more detailed than those applying to domestic dishes.
The relevant PD rights are contained in Part 25 of the Schedule to the GDO. This permits the installation, alteration or replacement on any building or other structure of a microwave antenna and any structure intended for the support of a microwave antenna (NB “microwave” means that part of the radio spectrum above 1,000 MHz).
Development is not permitted by Part 25 if:
(a)the building is a dwelling-house;
(b)it is TCSO permitted development;
(c)the building or structure is less than 15 m in height;
(d)the development would result in the presence on the building or structure of more than two microwave antennas;
(e)in the case of a satellite antenna, the size of the antenna, including its supporting structure but excluding any projecting feed element, would exceed 90 cms;
(f)in the case of a terrestrial microwave antenna —
(i)the size of the antenna, when measured in any dimension but excluding any projecting feed element, would exceed 1.3 m; and
(ii)the highest part of the antenna or its supporting structure would be more than 3 m higher than the highest part of the building or structure on which it is installed or is to be installed; or
(g)the building or structure is situated in a national park, an area of outstanding natural beauty, a conservation area, or an area designated under the Wildlife and Countryside Act 1981 for the enhancement and protection of the natural beauty and amenity of the countryside.
Accordingly a planning application will always be required unless the building is 15 m or more in height. Furthermore, if occupation of the building is shared, one must first check whether or not other occupants have already installed dishes of their own. If two or more have already been installed then a planning application will be required.
Anomalies are easy to spot. The occupier of a dwelling-house always has to apply for permission to install a terrestrial microwave antenna. Not so the flat dweller (provided that his block is over 15 m tall). Flat dwellers and office occupiers in conservation areas will always have to apply for permission even though they may be surrounded by satellite antennas on dwelling-houses. Elsewhere, a flat dweller may install two satellite dishes or combine a satellite dish with a terrestrial dish (again, subject to the height restriction), while a house dweller is limited to one satellite dish. Flat dwellers and office occupiers in blocks less than 15 m tall have no PD rights.
The consultation paper
It is no doubt with a view to modifying some of these anomalies that the consultation paper is being prepared. The timing has also no doubt been influenced by the introduction of the BSB service. Viewers wishing to subscribe both to Sky and BSB will require a dish and a squarial.
While the original squarial might have been considered “de minimis” the new squarial design undoubtedly falls within the ambit of planning control.
In a technical area such as this, planning law and practice will always lag behind technical developments, and the DOE will be hard pressed to get it right.
However, the opportunity should be grasped to iron out the more obvious anomalies and to ensure that planning law, which has always been a comparatively dynamic area of legislation, moves with the times. No doubt one’s older colleagues can remember the days when ordinary TV aerials were considered obtrusive. Nowadays, they are hardly noticed at all. Perhaps one day the same will be said for satellite dishes.
