In Murtagh v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2991 (Admin); [2022] PLSCS 193, the High Court upheld a challenge to the decision of the secretary of state to grant planning permission for the installation of telecoms equipment in a conservation area.
Hutchison 3G (UK) Ltd made an application for installing a 15m-high street pole and three cabinets and ancillary works for the purposes of 5G on Kingston Hill, Coombe, in the Royal Borough of Kingston upon Thames. The development was permitted development under the GPDO, but as the site was in the Coombe Wood Conservation Area, prior approval was needed.
Kingston Council refused the application. It considered that the telecoms equipment would result in an incongruous addition to the street scene that would be visually intrusive.
Hutchison appealed the refusal. The planning inspector considered the representations and concluded that the public benefits would outweigh the harms and allowed the appeal.
The claimant, who lives next to the area where the equipment would be installed, sought a statutory review of the inspector’s decision under section 288 of the Town and Country Planning Act 1990.
The claimant’s case relied on two grounds. First, the inspector failed adequately to consider alternative sites, and particularly an existing mast 100m away on the same street. Secondly, the inspector failed to address the impact of the proposed mast on the roots of a yew tree within the claimant’s property, which is subject to a tree preservation order.
Regarding ground 1, HHJ Jarman KC provided that paragraph 115 of the National Planning Policy Framework encourages the use of existing masts, but does not prohibit new masts, even where there is an existing one. Under paragraph 117, a new mast must be justified. However, the inspector’s decision letter did not expressly consider the existing mast. The defendant provided that “supplementary information justified the need for the proposed mast and it was not incumbent on the inspector to consider the existing mast not specifically mentioned in that information”. However, the judge disagreed with this position as the matter had been specifically raised as an issue by the claimant in his previous objections.
Regarding ground 2, the judge took into consideration Policy DM10 of the local plan, which provided that: “The council will expect new development to ensure that trees that are important to the character of the area or covered by tree preservation orders are not adversely affected.”
The defendant argued that a TPO protects a tree from any wilful damage, except so far as such work is necessary to implement planning permission. The judge did not disagree with the defendant’s argument but considered that policy DM10 was a material consideration which indicated that the yew tree subject to a TPO should not be adversely affected. In that regard, the question of whether the development might cause damage to its roots was an issue the inspector should have taken into consideration.
The judge quashed the inspector’s decision and remitted the appeal for redetermination.
This case shows that even telecoms equipment subject to permitted development needs to take into consideration alternative sites, and any impact they cause to trees protected by TPOs should be evaluated by the planning authority before issuing a decision.
Stefano D’Ambrosio is a solicitor in the planning & environmental team at Irwin Mitchell
