A planning inspector’s decision must be capable of being understood as to why the appeal was decided as it was, the High Court has confirmed, quashing an inspector’s decision to allow the installation of a 15m high, street pole, cabinets and ancillary works for the purposes of 5G on Kingston Hill, Coombe, in John Murtagh v Secretary of State for Levelling Up, Housing and Communities and others [2022] EWHC 2991 (Admin).
The Royal Borough of Kingston upon Thames refused the application for approval for the proposed mast by Hutchison 3G (UK) Limited because its siting, appearance and in particular its height would result in an incongruous addition to the street scene which would be visually intrusive and detract from the character and appearance of the surrounding area. Harm would be caused to the Coombe Wood Conservation Area which would not be outweighed by the public benefits of the proposal, which would also compete with the setting of Warren Cottage a locally listed building.
Hutchison appealed the refusal under section 78 of the Town and Planning Act 1990 and an inspector appointed by the defendant secretary of state decided that while the proposed mast would harm the setting of Warren Cottage and the CWCA in which it would be situated the public benefit from the additional equipment would outweigh those harms.
The claimant, the owner of Warren Cottage, sought a statutory review of the inspector’s decision under section 88 of the 1990 Act on the ground that he failed to adequately consider alternative sites – in particular, an existing mast on the same street 100 metres away from the proposed mast – and, that he failed to address the impact of the proposed mast upon a yew tree within the claimant’s property which was subject to a Tree Preservation Order.
Under paragraph 117 of the National Planning Policy Framework applications should be supported by evidence to justify a new mast, including that the use of existing masts has been explored. Hutchison claimed that the new mast was necessary to provide 5G coverage and improve service in the area. However, both the existing mast and the proposed mast were outside the desired search area. Hutchison discounted the former because it was not capable of extending the signal across the coverage gap. Alternative sites had been considered but were not suitable because of driveway crossings, existing street furniture or traffic site lines. The inspector’s decision did not refer specifically to the existing mast.
The court concluded that, while the inspector did not need to rehearse every argument relating to each matter, an appeal decision must be capable of being understood as to why it was decided as it was and what conclusions were reached on the principal important controversial issues.
The inspector’s decision did not explain what conclusions – if any – were reached in respect of the existing mast. As regards the yew tree local plan policy DM10 requires any new development to ensure that trees covered by TPOs are not adversely affected. The inspector failed to deal with this issue and should have done so; his decision would not inevitably have been the same.
Louise Clark is a property law consultant and mediator
