The government has introduced changes to extend the permitted development rights available to Electronic Communications Code operators. While these changes are intended to make development easier for operators, it is important that all limitations and restrictions on the rights are understood.
Relaxation of permitted development rights
Operators benefit from permitted development rights in some circumstances. Permitted development rights are a general grant of planning permission for certain types of development.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2022 was recently introduced. The amendment order gave effect to the government’s response to last year’s consultation on changes to permitted development rights for electronic communications infrastructure. The amendment order amends Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The amendment order varies the limits on increases to the volume and dimensions of apparatus allowed under existing permitted development rights and the requirements to obtain prior approval for certain development.
The need for prior approval
Some permitted development rights are subject to prior approval. Prior approval is confirmation from the local planning authority that specified matters are acceptable. The effect of the changes is that prior approval will be required for both ground-based and building-based infrastructure in fewer circumstances. For operators, this removes a procedural step in securing planning for apparatus. For landowners, this removes an opportunity to object to and challenge proposed development at their sites.
An operator is currently obliged to serve a developer’s notice on a landowner before seeking prior approval from an LPA, and this provides notice of the plans to the landowner and an opportunity for the landowner to object to the prior approval application. Without the need for prior approval, landowners are potentially deprived of an opportunity to object to an operator’s proposals and defeat them at the planning stage.
In place of the requirement to obtain prior approval, the amendment order imposes a new condition to the permitted development right requiring that the visual impact of certain types of development are minimised. This condition is ambiguous and affords landowners who scrutinise operators’ proposals an opportunity to lobby the LPA that these proposals do not minimise visual impact and the permitted development rights do not apply. However, it will be more difficult to defeat proposals without a formal prior approval process.
Limitations and restrictions on permitted development rights
Alongside the government’s move to relax permitted development rights, we have become increasingly aware of operators seeking to rely on permitted development rights in situations where they may not, as a matter of law, benefit from those rights.
While the GPDO does grant permission for specified types of development, such permission is subject to a number of conditions and limitations. In addition, there are several restrictions on permitted development rights pursuant to Article 3 of the GPDO. One such restriction is set out in Article 3(4) of the GPDO, which provides that nothing in the GPDO permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 of the Town and Country Planning Act 1990.
Restrictions in action
This was the case in a recent planning appeal (Ref: APP/X5210/W/21/3279455) dated 3 March 2022 (the Matilda Appeal), where the Planning Inspectorate confirmed that an operator did not benefit from permitted development rights following a detailed objection on behalf of the landowner.
In the Matilda Appeal, there were conditions attached to the planning permission for the host building which required the prior written consent of the LPA for certain attachments and equipment. The planning inspector found that these conditions restricted the permitted development rights. Therefore, the development was not permitted by the GPDO and the appeal was dismissed.
The Matilda Appeal follows New World Payphones Ltd v Westminster City Council [2019] EWCA Civ 2250; [2020] EGLR 5 and Dunnett Investments Ltd v SSCLG & East Dorset DC [2017] EWCA Civ 192; [2017] PLSCS 80.
New World provides that a decision maker is bound to consider and determine whether a development falls within the scope of permitted development, and Dunnett provides that a planning condition which requires the express written consent of the LPA excludes the grant of planning permission via permitted development rights pursuant to the GPDO.
What next?
The changes to the GPDO do not alter the principles of New World or Dunnett. While the circumstances in which prior approval is required have been reduced, the broader limitations on permitted development rights still apply and the new condition regarding minimising visual impact will operate as a constraint on development.
The outcome of this is that the impetus will now be on landowners to proactively monitor and challenge the existence of permitted development rights when contacted by operators regarding proposals, rather than reactively objecting to applications for prior approval.
The Matilda Appeal also demonstrates another important point, which is the need for landowners to actively participate in the planning process. In that case, the LPA did not raise the existence of the restriction under Article 3(4) of the GPDO in its objection or the appeal process. This will be even more important where prior approval is not required, and landowners may need to engage more actively with the planning process.
Robert Garden is a senior associate at CMS with a specialism in infrastructure and telecommunications planning
