New World Payphones Ltd v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lady Justice Asplin,Lord Justice Lewison |
| Judgment Date | 18 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2250 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/0430 |
| Date | 18 December 2019 |
[2019] EWCA Civ 2250
Lord Justice Lewison
Lord Justice Hickinbottom
and
Lady Justice Asplin
Case No: C1/2019/0430
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
PLANNING COURT
THE HON MR JUSTICE OUSELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Stinchcombe QC (instructed by Squire Patton Boggs (UK) LLP) for the Appellant
Saira Kabir Sheikh QC (instructed by Bi-Borough Legal Services) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 19 November 2019
Further written submissions: 25 November 2019
Approved Judgment
The Background
Telephone boxes are a feature of the London landscape. There are 1,800 in the City of Westminster alone.
However, with the rise of the mobile phone, many are now rarely used, in poor condition and suffering from anti-social behaviour and vandalism. The City of Westminster Council (“the Council”) considers that, for some, their function has largely or wholly disappeared and consequently they should be removed in accordance with the conditions which formed part of the permitted development provisions under which they were installed.
It is therefore initially curious that, as reflected nationwide, applications to the Council to install new or replacement telephone kiosks have burgeoned over the last few years. Prior to a change in the scheme earlier this year to exclude telephone kiosks as a class of permitted development, each application was for prior approval of permitted development and was invariably accompanied by a parallel application to the Council for advertisement consent to allow illuminated advertising on the whole of the back panel of the new kiosk. That, the Council suggests, betrayed the true purpose of these proposed structures. The Council considers it is unlikely that the new kiosks would be used by the public to make telephone calls; and the applications were in substance an attempt unlawfully to use the provisions for classes of development permitted by order of the Secretary of State to circumvent normal planning permission controls that properly apply to such development.
It is in that context that this appeal raises important questions concerning the proper approach to the scope of development covered by a permitted development order.
It does so in the form of an appeal and cross-appeal from the Order of Ouseley J dated 5 February 2019 in which he allowed the Council's application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) quashing the decision of a Planning Inspector J Bell-Williamson MA MRTPI on behalf of the Secretary of State (“the Inspector”) to grant approval to the Appellant developer (“NWP”) to replace two existing telephone boxes in Marylebone Road with a single new kiosk incorporating a large back panel to display illuminated digital advertisements.
Before us, Paul Stinchcombe QC appeared for NWP and Saira Kabir Sheikh QC for the Council. At the outset, I thank them for their helpful submissions.
The Legal Background
Section 57(1) of the 1990 Act provides that planning permission is required for any “development” of land, defined in section 55 (so far as relevant to this appeal) as any building operations or material change in the use of any building or land.
The “use” of a building or land is therefore an important planning concept, as is the related concept of “purpose”, i.e. the use for which the building or land is intended. By section 76(2) and (3) of the 1990 Act, where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and, if no purpose is specified, then the permission is construed as including permission to use the building for the purpose for which it is designed. “Purpose” in this context is not subjective – it does not depend upon what is in the mind of the developer – it is the use for which the (usually, proposed) development, looked at objectively, is intended. Development may of course have more than one purpose, and thus be “mixed use”, e.g. if a development comprises both a farm (agricultural) and a farm shop (retail).
The installation of a telephone kiosk is undoubtedly development as a building operation, for which planning permission is required.
By section 58(1)(a), planning permission may be granted for classes of development by a development order made by the Secretary of State. The Town and Country Planning Act (General Permitted Development) (England) Order 2015 ( SI 2015 No 596) (“the GPDO”) is the principal development order made pursuant to that statutory power. By article 3(1) and (2) 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.
At the relevant time, Part 16 Class A of Schedule 2 (headed “Electronic communications code operators: Permitted development”), so far as relevant to this appeal, permitted:
“Development by or on behalf of an electronic communications code operator for the purpose of the operator's electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of—
(a) the installation, alteration or replacement of any electronic communications apparatus…”.
Paragraph A.2 provided, so far as relevant:
“(2) Class A development is permitted subject to the condition that—
(a) any electronic communications apparatus provided in accordance with that permission is removed from the land or building on which it is situated—
(i) …
(ii) … as soon as reasonably practicable after it is no longer required for electronic communications purposes; and
(b) such land or building is restored to its condition before the development took place, or to any other condition as may be agreed in writing between the local planning authority and the developer.
(3) … Class A development—
…
(c) on unprotected land where that development consists of—
…
(iii) the construction, installation, alteration or replacement of—
(aa) a public call box;…
is permitted subject… to the conditions set out in paragraph A.3 (prior approval).
The relevant condition is found in paragraph A.3(4):
“Before beginning the development described in paragraph A.2(3), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the siting and appearance of the development.”
Further requirements of the application are found in paragraph A.3(5). Paragraph A.3(8) essentially prohibits beginning the development without confirmation from the local planning authority that prior approval is not required or has been granted; although where, within a specified number of days (now, 56 days) of an application under paragraphs A.3(4) and (5), the authority fails to respond substantively to that application, then development is effectively deemed to be permitted and it can begin.
Paragraph A.4 defines “electronic communications code operator” as “a person in whose case the electronic communications code is applied by a direction under section 106(3)(a) of the Communications Act 2003 [‘the 2003 Act’]”. Paragraph A.4 also says that “electronic communications network” shall have the same meaning as in the 2003 Act; and it is defined in section 32 of that Act to include “a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description”. It is uncontroversial that, under these definitions, NWP is an electronic communications code operator operating a national electronic communications network.
Again by virtue of paragraph A.4, “electronic communications apparatus” also has the same meaning as in the 2003 Act, which, in paragraph 5 of the Electronic Communications Code (which is incorporated into the Act as Schedule 3A), defines the term as follows:
“(1) In this code “electronic communications apparatus” means—
(a) apparatus designed or adapted for use in connection with the provision of an electronic communications network,
(b) apparatus designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals that are transmitted by means of an electronic communications network,
(c) lines, and
(d) other structures or things designed or adapted for use in connection with the provision of an electronic communications network.
(2) ….
(3) In this code—
…
‘structure’ includes a building only if the sole purpose of that building is to enclose other electronic communications apparatus.”
It is – in my view, rightly – common ground before us that, for these purposes, a telephone kiosk is a “building”; and, therefore, it falls within the definition of “structure” and thus “electronic communications apparatus” if, and only if, its “sole purpose… is to enclose other electronic communications apparatus”.
To an extent, the inclusion of communications infrastructure within Part 16 of the GPDO reflects the support given in the public interest to that infrastructure by the National Planning Policy Framework (“NPPF”). The NPPF at the relevant time (the 2012 version) said, in particular (emphasis added):
“42. Advanced, high quality communications infrastructure is essential for sustainable economic growth. The development of high speed broadband technology and other communications networks also plays a vital role in enhancing the provision of...
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