Town and country planning – Permitted development – Prior approval – First respondent city council refusing application by appellant for prior approval to replace two existing telephone boxes with single new kiosk – Inspector appointed by second respondent secretary of state allowing appeal – High Court granting application to quash decision – Appellant appealing – Whether grant of prior approval outside powers conferred by Town and Country Planning (General Permitted Development) (England) (Order) 2015 – Appeal dismissed
The appellant was the operator of an electronic communications network for the purposes of the Communications Act 2003 and the Town and Country Planning (General Permitted Development) (England) (Order) 2015 (GPDO). It wanted to replace two existing telephone boxes with a single new kiosk outside 25-27 Marylebone Road, London, in the area of the first respondent city council. The intended exercise of the permitted development rights within the GPDO required the appellant to apply to the first respondent for a determination whether its prior approval was required for the siting and appearance of the new kiosk.
The appellant’s application was refused but it appealed successfully to the second respondent secretary of state. The appeal was decided by an inspector upon written representations and a site visit. The inspector rejected the first respondent’s contention that the application for prior approval had not fallen with the ambit of Part 16 of the GPDO and granted prior approval.
The first respondent successfully challenged the lawfulness of that decision under section 288 of the Town and Country Planning Act 1990. The judge concluded that the proposed development served the dual purpose of a telephone kiosk, which fell within Part 16, Class A of Schedule 2 to the GPDO, and an integrated illuminated advertisement display panel, which did not. Accordingly, as the kiosk had a dual rather than a single purpose, it did not fall within the scope of development permitted by Class A: [2019] EWHC 176 (Admin); [2019] PLSCS 26. The appellant appealed.
Held: The appeal was dismissed.
(1) The GPDO described classes of “permitted development” for which planning permission was granted without the requirement for a planning application to be made under Part 3 of the 1990 Act. To fall within a class, development not only had to comply with the class description, but also to satisfy a series of conditions and limitations unique to that particular class. If it did not do so, it was not permitted under the GPDO; and planning permission could only be obtained on the basis of a full application.
To take advantage of being permitted development, the proposed development had to fall entirely within the scope of the GPDO. Mixed use development could not take advantage of that benefit because, if it were able to do so, the GPDO could and would be used for permitting development for something outside its scope. An application for prior approval on the basis that the development satisfied the restricted criteria relevant to such approval (in this case, siting and appearance) could not extend the scope of the GPDO. Therefore, on the true construction of the GPDO, as a general proposition, to be “permitted development”, the whole of any development had to fall within the scope of a class in Schedule 2 of the GPDO, by falling within the relevant definition and satisfying any express restrictions as to “exceptions, conditions and limitations”; and therefore a mixed use or dual purpose development, where one use or purpose was outside the scope of the class, could not generally be permitted development. Accordingly, the judge had been correct to conclude that the proposed development fell outside the scope of the GPDO: Keenan v Woking Borough Council [2017] EWCA Civ 438; [2017] PLSCS 134 applied.
(2) It was common ground that the appellant’s subjective purpose in pursuing the development was irrelevant: what was relevant was the use or purpose of the proposed physical structure that comprised the development. In any event, the form of the application could not determine whether any proposal fell within a permitted development class. An application to a local planning authority for a determination whether its “prior approval” would be required did not impose on the authority a duty to decide whether the proposed development was in fact permitted development under the GPDO. Requiring a developer to seek prior approval, limited to restricted planning issues, did not confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. On an application to an authority for a determination as to whether its “prior approval” was required, the authority was bound to consider and determine whether the development otherwise fell within the definitional scope of the particular class of permitted development.
(3) Section 222 of the 1990 Act provided that, where the display of advertisements in accordance with the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 involved development of land, planning permission for that development should be deemed granted without any application for express grant. Absent the advertising panel, the development would have fallen within Part 16 Class A and would have been permitted development; but, with that panel, only part of the proposed development fell within that class and the permitted development route could not be used to avoid the rigours of the full planning application process for that other part.
(4) This was not a case in which an exercise of planning judgment was required to assess whether proposed development did or did not fall entirely within a class of permitted development. For the purposes of the definition of “electronic communications apparatus”, a telephone kiosk was a “structure” and a “building”; and for those purposes, by virtue of para 5(3) of Schedule 3A to the 2003 Act (the Electronic Communications Code): “structure” included a building only if the sole purpose of that building was to enclose other electronic communications apparatus. It was uncontroversial that the proposed telephone kiosk in the present case did not have merely the single purpose to enclose electronic communications apparatus, but also an advertising purpose. It therefore clearly fell outside the scope of the GPDO and the judge was right to conclude that the proposed development fell outside the scope of the GPDO and was right to quash the prior approval on that ground.
Paul Stinchcombe QC (instructed by Squire Patton Boggs) appeared for the appellant; Saira Kabir Sheikh QC (instructed by Bi-Borough Shared Legal Services) appeared for the first respondent; the second respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of New World Payphones Ltd v Westminster City Council and another
