Infocus Public Networks Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 02 December 2013 |
| Neutral Citation | [2013] EWHC 4622 (Admin) |
| Docket Number | CO/9945/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 December 2013 |
[2013] EWHC 4622 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Mr Justice Hickinbottom
CO/9945/2013
Rowena Meager (instructed by Smith Partnership Solicitors) appeared on behalf of the Claimant
Justine Thornton (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Introduction
The advent of the mobile telephone did not bring the era of the telephone box to an end. The Claimant is an electronic communications network provider, otherwise known as a telecommunications code system operator, holding a licence under the Telecommunications Act 1984 and the Communications Act 2003 including the Telecommunications Code made under section 106 of the 2003 Act. It is concerned with the installation of telephone kiosks on our streets.
In July and August 2012, it made applications to the Second Defendant planning authority ("the Council") for prior approval for the installation of five telephone kiosks in Fulham Road, Lillie Road, Crewfield Close, Dawes Road and Goldhawk Road respectively. In each case the Council determined that prior approval was required, and all five applications were refused in similar terms on the grounds that the proposed kiosk would be visually intrusive and would detract from the appearance of the street.
The Claimant appealed to the Secretary of State. On 17 June 2013, an inspector appointed by the Secretary of State, Mr Peter Eggleton ("the Inspector"), dismissed the appeals, in decision letters in broadly similar terms specifically relying on design shortcomings. The Inspector also placed reliance on other factors in relation to two of the sites: first, that with reference to saved Policy EN10 of the relevant Local Plan, namely the London Borough of Hammersmith and Fulham Unitary Development Plan (to which I shall shortly come), the Goldhawk Road site was in a conservation area; and, second, that with reference to saved Policy EN2 of the UDP, the siting of a kiosk in Dawes Road may encourage anti-social behaviour.
In this application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), the Claimant seeks to quash those decisions of the Inspector. Before me, Miss Rowena Meager has appeared for the Claimant, and Miss Justine Thornton for the Secretary of State. At the outset, I should thank them both for their helpful submissions.
The Legal and Policy Background
The relevant legal and policy background is uncontroversial.
Section 57(1) of the 1990 Act provides that planning permission is required for any development of land. The installation of a telephone kiosk is such development.
By section 58(1)(a), planning permission may be granted by a development order made by the Secretary of State. The Town and Country Planning Act (General Permitted Development) Order 1995 ( SI 1995 No 418) as amended (notably by the Town and Country Planning Act (General Permitted Development) (Amendment) (England) Order 2001 ( SI 2001 No 2781)) ("the GPDO") is the principal development order made pursuant to that statutory power. By article 3 of the GPDO, subject to any relevant specified exception, limitation or condition, planning permission is granted for classes of development described as permitted development in Schedule 2 to the order.
Telephone kiosks are covered by Part 24 of that schedule, which was wholly substituted by the 2001 Order. Those provisions entitle a telecommunications code system operator such as the Claimant to place and maintain communications apparatus including telephone kiosks on the highway as permitted development, but subject to the local planning authority giving prior approval to the siting and appearance of the development. Paragraph A.3(3) requires the developer, before beginning development and following specified publicity, to apply to the local planning authority for a determination as to whether its prior approval is required "to the siting and appearance of the development"; and, in broad terms, the developer cannot begin the development until after that determination and, where required, the approval itself. Part 24 sets out a timetable for that.
Section 70(2) of the 1990 Act provides that, in dealing with any planning application, a decision-maker (i.e. a local planning authority, or on appeal an inspector who conducts an appeal on behalf of the Secretary of State) must have regard to the provisions of "the development plan" as well as "any other material consideration" which includes national policy guidance.
The content of the development plan is defined in section 38 of the Planning and Compulsory Purchase Act 2004 to include "development plan documents" for the relevant area. Section 38(6) provides that:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decision not being irrational, in the sense of Wednesbury unreasonable ( Tesco Stores Ltd v Secretary of State Environment [1995] 1 WLR 759 at page 780F-G). The courts consequently leave planning decisions to be taken on their merits by the appointed decision-maker on the basis of guidance promulgated by the Secretary of State and locally; and, in considering a statutory application under section 288 of the 1990 Act, the court will only quash a decision if unlawful on traditional public law grounds (see, e.g., Seddon Properties v Secretary of State for the Environment [1978] 42 P&CR 26, and R (Alconbury Developments Ltd) v Secretary of State Environment for Transport and Regions [2001] UKHL 23 at [60] per Lord Nolan, [129] per Lord Hoffmann and [159] per Lord Clyde).
An inspector's decision letter cannot be subjected to the exegesis that might be appropriate for a statute or a deed. It must be read as a whole and in a practical and common sense way, in the knowledge it is addressed to the parties who will be well aware of the issues and arguments deployed at the inspector's inquiry, so that it is not necessary to rehearse every argument but only the principal controversial issues.
In relation to a challenge to a decision-maker's approach to policy guidance, in South Somerset DC v Secretary of State Environment [1993] 1 PLR 80 at page 83F-H, Hoffmann LJ said this:
"The [decision] letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning… One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy…".
Those principles as to the general approach have recently been specifically approved in respect of decisions on applications for prior approval under the GDPO, in Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367. That case concerned a different permitted development under the GDPO — the erection on agricultural land of an agricultural building necessary for the purposes of agriculture under Part 6 of Schedule 2 — and it was decided before the National Planning Policy Framework ("the NPPF") replaced many existing central government policy guidance documents in March 2012; but the principles set out by Richards LJ (with whom Rix and Smith LJJ agreed) are of general application to GPDO permitted developments. Neither party before me has suggested otherwise.
Therefore, where a proposed development falls within one of the GPDO classes, the principle of development is not in issue –although that is not in itself determinative of the application, because the approval of the planning authority is still required for the siting and appearances of the in principle development. As Richards LJ explained in Murrell (at [49]):
"The question whether the particular form of development proposed is acceptable in terms of siting, design and appearance involves a balancing exercise… That exercise involves potentially difficult planning judgments, which are the province of the local planning authority and, on appeal, the planning inspector and with which the court will not interfere otherwise than on grounds of irrationality. That makes it all the [more] important for the court to be satisfied that the decision-maker has approached the exercise from the right perspective when attributing weight to the competing considerations. An approach premised, for example, on the need for strict controls over development in the countryside could produce a different result from an approach premised on an acceptance of the principle of development in the countryside…".
Therefore, when considering an application for prior approval, the focus of the decision-maker is on whether, on balance and as a matter of planning judgment, the design, siting and appearance of the development are acceptable; but excluded from the decision-maker's role is consideration of the principle of development which is a given, being inherent in the...
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