R (on the application of Lifford Gardens and the Sands Residents’ Association Ltd) v Wychavon District Council

Town and country planning – Permitted development – Electronic communications – Telecommunications operator notifying defendant of intention to erect telegraph poles and cabling in area of outstanding natural beauty – Defendant deciding proposals “fell within the scope” of the Town and Country Planning (General Permitted Development) (England) Order 2015 – Claimant applying for judicial review – Whether consultation required between defendant and interested party – Application dismissed The interested party was a telecommunications operator. In June 2023, it wrote to all the residents in the village of Broadway, in Worcestershire (which was in an area of outstanding natural beauty (AONB)), concerning the erection of telegraph poles and cabling, explaining they intended to erect six 11m-high poles in Lifford Gardens to provide ultra-fast broadband. The interested party then held meetings with the defendant’s planning officer and the parish council, following which it notified the defendant local authority, pursuant to regulation 5 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003. The claimant applied for judicial review of the defendant’s decision that the development was within the scope of class A in Part 16 of schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015 (GPDO). The issues for the court were, amongst other things: (i) whether the defendant, upon receipt of the interested party’s notification of its intention to install the poles under regulation 5 of the 2003 Regulations, was required to determine whether certain conditions in class A were satisfied; and (ii) whether the defendant misinterpreted paragraph A.2(1)(c) by failing to recognise that it was required to consider whether the visual impact of the development had not been “minimised so far as practicable, taking into account the nature and purposes of the site” because the cabling had not been installed underground. Held: The application was dismissed. (1) There was plainly a statutory duty under regulation 3(1)(b) of the 2003 Regulations for an operator to consult a local planning authority in relation to the installation of communications apparatus. In order to understand that duty, it was necessary to read regulation 3(1)(b) with regulation 3(3) which set out three matters which the operator was obliged to minimise, so far as reasonably practicable: (a) impact on visual amenity of properties, in particular buildings on the statutory list of buildings; (b) potential hazards posed by the work or the apparatus once installed; and (c) interference with traffic. (2) The duty to consult also included those matters which arose from the particular deemed consent to be relied upon. The consultation between the operator and the planning authority could not sensibly be limited to matters set out in regulation 3(3)(a) of the 2003 Regulations but ignore the conditions which applied to the particular development which was notified to the local planning authority. Those conditions were location-specific. Their requirements varied according to the presence or absence of sites which were to be afforded protection, such as listed buildings, scheduled monuments, or, as in this case, AONBs. The consultation was, therefore, not generic but was to take account of the particular surroundings of the development, visual amenity and also visual impact on any site which was within the scope of a condition within Part 16 of schedule 2 of the GPDO. What would be legally adequate consultation to satisfy regulation 3(1)(b) for development comprising electronic communications apparatus would be highly case-specific. (3) The engagement with those affected amounted to a lawful consultation, without taking account of the post-notification requests and exchanges of information. It was undertaken at a stage which was several months in advance of the notification with the defendant in person and in writing in advance of notification. It went beyond simple contact with the defendant, which would have satisfied the letter of regulation 3(1)(b), in that it included residents directly, along with their elected representatives. It plainly allowed for intelligent responses, which were in fact made clearly and cogently. Further, the request for further information made by the defendant after notification and its provision by the interested party were part of the consultation and might properly be taken into account in deciding whether there was compliance with regulation 3(1)(b). The dialogue remained open at that stage, and it would be contrary to good sense and the obligations of the interested party to hold otherwise. Those post-notification exchanges strengthened, but were not essential to, the conclusion that the consultation was legally adequate: R v NE Devon Health Authority ex p Coughlan [2001] QB 213 applied. (4) The description of the deemed consent did not incorporate the Electronic Communications Code such as to impose a duty on the defendant to reach a conclusion on compliance with the Code before it could be said that proposed development was within the scope of Part 16. The reference to the Code was a reference to the legal basis on which the installation was to be carried out on the land: either the operator owned the land, or it used the Code. For the purposes of Part 16 of the GPDO, it was quite straightforward to work out whether there was a determination to be made, or not. In this case, the clear terms of the GPDO were that there was no determination for the defendant to make. The context and purpose of the development order was to choose which types of development would be permitted under the order and then to set limits and criteria within which it was necessary to fall to be permitted development. (5) The scheme of control for this type of development required a dialogue between the interested party and the defendant, which scheme anticipated that such dialogue would be undertaken conscientiously and openly, consistent with the Code of Practice. That was a lesser degree of intervention by the planning authority than in respect of other types of telecommunications development for which prior approval was required. However, it was a greater degree of intervention than was required for those permitted development rights which required no contact with the planning authority. The secretary of state had made a judgment about what was a proportionate response for the planning regime to make in particular circumstances. The interested party was from a limited class of developers and was separately regulated, outside the planning system, and was expected to comply with the conditions in the GPDO, failing which enforcement steps were available to both OFCOM (section 110(1) of the 2003 Act) and the planning authority (Part VII of the 1990 Act). Gabriel Nelson (instructed by SCS Law) appeared for the claimant; Jack Smyth (instructed by Wychavon District Council) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Lifford Gardens and the Sands Residents’ Association Ltd) v Wychavon District Council