Town and country planning – Permitted development – Prior approval – Claimant city council refusing application for prior approval to replace two existing telephone boxes with single new kiosk – Inspector appointed by defendant secretary of state allowing appeal – Claimant seeking order quashing decision – Whether grant of prior approval was outside powers conferred by Town and Country Planning (General Permitted Development) (England) (Order) 2015 – Application granted
The interested party 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 claimant city council. The intended exercise of the permitted development rights within the GPDO required the interested party to apply to the claimant for a determination as to whether its prior approval was required for the siting and appearance of the new kiosk. The interested party’s application was refused, but its appeal to the defendant secretary of state was successful. The appeal was decided by an inspector upon written representations and a site visit. The claimant challenged the lawfulness of that decision under section 288 of the Town and Country Planning Act 1990.
Section 58 of the 1990 Act provided that planning permission might be granted by a development order. Under section 59(2), a development order might itself grant planning permission for development of any specified class. The relevant Order for that purpose was the GPDO which provided that planning permission was granted for the classes of development described as permitted development in schedule 2. Class A in part 16 of schedule 2 dealt with electronic communications code operators.
The claimant contended, amongst other things, that the grant of prior approval was outside Class A because the new kiosk was not for the purpose of the operator’s electronic communication network, but was primarily for the purpose of advertising via an illuminated panel.
Held: The application was granted.
(1) If there were no GPDO, a specific planning application would have to be made for all the developments which benefitted from the general permission it gave. A whole array of different types of development, were regarded as fit for permission, subject to specific conditions. For some, including Class A, the relevant material considerations were taken into account in the grant of the general permission, provided that certain specific material considerations were resolved through a specific decision-making process. The restricted range was clearly tailored to the specific type of development at issue. However, the general range of considerations had not been resolved in relation to a development which did not come within the class relied on, and the issues for specific consideration had not been tailored to such a development. The definition of the class had to be interpreted in that light. That meant that the whole development for which prior approval was sought had to fall within the class relied on, and no part of it could fall outside it. A development which was partly “for the purpose” of the operator’s network, and partly for some other purpose, was not a development “for the purpose” of the operator’s network, because it was for something else as well. The single dual-purpose development had to be judged as a whole: Keenan v Woking Borough Council [2017] EWCA Civ 438; [2017] PLSCS 134 followed.
(2) A kiosk for which prior approval was sought, “for the purpose of” the operator’s network, was one assumed by the GPDO to be one required by it; it was envisaged that it would be erected and used for that purpose. In the context of planning law, the concept of dual or mixed uses did not turn on dominant or secondary purposes. The GPDO had to be analysed by reference to concepts with which planning law was familiar, rather than by dominant or primary /secondary considerations. In the present case, on the evidence, the only conclusion was that the kiosk served a dual purpose. Part of its purpose was for the operator’s network, as a telephone kiosk. Part of it was to be the electrified advertising panel. The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant. It did not matter whether it would have been lit if no advertisements were displayed. No relative significance had to be attributed to either part of the dual purpose; it was sufficient if the two purposes existed without the advertising use being ancillary or incidental or of no legal significance.
(3) The question whether a proposed development came within the scope of Class A and could therefore proceed for consideration of prior approval, was not to be determined by the outcome of the prior approval process. It was to be determined upon the application. The application was for the purpose of the operator’s telecommunications network and for the purpose of advertising, because part of what was needed for the advertising role was performed by the structure and features of the telephone kiosk, to be dealt with under the electronic communications prior approval. A further consent was necessary in order for the facility, as installed, to be used for that purpose, but the advertising consent would be pointless without the inbuilt facility in the kiosk to switch on the lights and display the advertisement. The inspector’s approach did not deal with the fact that the kiosk contained features which were not there at all for the telecommunications function, whether acceptable in the street scene or not.
(4) The kiosk would fall outside the scope of Class A if advertising consent were granted, since its dual purpose would be apparent daily. The judgment as to whether the kiosk, as applied for, came within the scope of Class A had to be made before siting and appearance were considered. The prior approval should have been refused because the application fell outside the scope of Class A, and the inspector was bound so to conclude. Accordingly, the prior approval decision would be quashed.
Saira Kabir Sheikh QC (instructed by Bi-Borough Shared Legal Services) appeared for the Claimant; Mark Westmoreland Smith (instructed by the Government Legal Department) appeared for the defendant; Paul Stinchcombe QC (instructed by Squire Patton Boggs) appeared for the interested party.
Eileen O’Grady, barrister
