Mobile phone mast — Town and Country Planning (General Permitted Development) Order 1995 — Enforcement notices — Whether inspector obliged to find mast permitted development — Whether obliged to find development unlawful in order to take account of appellant’s rights under Article 6 of European Convention on Human Rights — Appeal dismissed
The appellant opposed plans by the first interested party, T-Mobile UK (TMUK), to erect a mobile phone mast. Since the mast was to be less that 15m tall, it amounted to permitted development under the Town and Country Planning (General Permitted Development) Order 1995, provided that TMUK first applied to the local planning authority for a determination as to whether prior approval would be required for siting and appearance. Upon receiving TMUK’s application, the authority took the view that the mast would not accord with the development plan. As required by the 1995 Order, they advertised the application locally and took into account representations, including those of the appellant. They notified TMUK that prior approval would be required. They subsequently decided not to give that approval, but failed to notify TMUK of their decision within 56 days of the application. Under the scheme of the 1995 Order, this meant that TMUK was entitled to go ahead with the erection of the mast, which it did.
The authority did not accept that the 56 days had expired, and served enforcement notices against TMUK. TMUK appealed to the respondent secretary of state, and a public inquiry was held at which the appellant made representations. The inspector concluded that the appeal should be allowed under section 174(2)(c) of the Town and Country Planning Act 1990, because the development was permitted under the 1995 Order and therefore did not constitute a breach of planning control.
The appellant sought judicial review of that decision, alleging a breach of her right to a fair hearing under Article 6 of the European Convention on Human Rights. The judge dismissed the appellant’s claim, and she appealed. She contended that the inspector who had heard the enforcement notice appeal should have noted the deprivation of Article 6 rights and should have held that TMUK did not have lawful planning permission, if necessary by writing words into the statutory scheme of the 1995 Order and the 1990 Act, pursuant to section 3 of the Human Rights Act 1998.
Held: The appeal was dismissed.
The appellant’s Article 6 rights had clearly been infringed. She had been entitled to expect that her representations would be determined by the local authority, in an effective decision that might be the subject of an appeal to an inspector, controlled by the court by judicial review. She had been deprived of her right to such a determination. However, section 3 of the 1998 Act could not be used in such a situation. The statutory scheme and the legislation could be operated compatibly with the Convention. It was the local authority that had infringed the appellant’s Convention rights, but they had simultaneously established the rights of innocent third parties and TMUK to commence the erection of a mast for which the 1995 Order granted permission. To contemplate writing in words that would have the effect of undoing the rights of a third party, and indeed forcing that third party to remove what it had already lawfully erected, went beyond what was contemplated by section 3.
It was misconceived to bring proceedings attacking the decision of the inspector on the enforcement notice appeal. The first issue on that appeal was whether TMUK had planning permission. On that matter, there could be no issue between the appellant and TMUK, and the appellant’s points on the merits of siting and appearance had no relevance. On that issue, her Article 6 rights were simply not engaged. The inspector had no jurisdiction to take away from TMUK the development rights for which the 1995 Order had given it permission. The appellant’s only proper complaint related to the failure of the local authority to make effective their decision that approval should be refused, as a result of which she had been deprived of the right to make her points in an appeal from that decision. In relation to that complaint, only the local authority had any responsibility, and any remedy lay only against them.
David Wolfe (instructed by Public Law Solicitors, of Birmingham) appeared for the appellant; Tim Mould (instructed by the Treasury Solicitor) appeared for the respondent; Christopher Katkowski QC and Morag Ellis (instructed by Freshfields Bruckhaus Deringer) appeared for the first interested party; the second interested party, Leeds City Council, did not appear and were not represented.
Sally Dobson, barrister
