Nigel Mawbey v Lewisham Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 16 February 2018 |
| Neutral Citation | [2018] EWHC 263 (Admin) |
| Docket Number | Case No: CO/3411/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2018 |
[2018] EWHC 263 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/3411/2017
The Queen on the application of
Andrew Parkinson (instructed by Richard Buxton) for the Claimant
Mark Westmoreland Smith (instructed by London Borough of Lewisham Legal Services) for the Defendant
Heather Sargent (instructed by DAC Beachcroft LLP) for the First Interested Party
The Second Interested Party did not appear and was not represented
Hearing date: 6 February 2018
Judgment Approved
The Claimant seeks judicial review of the Defendant's decision, made on 9 June 2017, that the installation of mobile telephone apparatus by the First Interested Party on the roof of Forsythia House, Pendrell Road, Brockley, London, SE4 2PA (“the Building”) was permitted development under Part 16 of the Town and Country Planning (General Permitted Development)(England) Order 2015 (“the GPDO”), and therefore it would not take enforcement action against it, as requested by the Claimant.
The Building is owned by Lewisham Homes, which manages social housing on behalf of the Defendant. It has granted the First Interested Party (“IP1”) a licence to install the apparatus, for a fee.
The Claimant and his family live in the same street as the Building, in the Telegraph Hill Conservation Area 1. They, along with many other local residents in Forsythia House and the nearby streets, object to the installation, and the fact that they were not consulted about it. They consider it is unsightly and out of place in an attractive conservation area. They are also fearful of the health implications of the radiation emitted by the installation (there are visible radiation warning signs on the installation).
There is a plant room on the roof of the Building, and the apparatus has been installed on the plant room roof. IP1's proposal comprised “6 No. ANTENNAS, 6 No. RRU's 2, 1 No. 0.3m DISH and TEF 3 No. ANTENNAS ON TRIPOD MOUNTED SUPPORT POLES”. The proposal also provided for the installation of handrails, cable trays, ladders, cabinets, and steel support grillage. The nine antennae have been installed in groups on the four corners of the roof. The antennae are not free-standing. Each antenna is supported by an antenna pole and attached by a yoke arm to a central support pole. The central support pole is held in place by steel legs, forming a tripod, bolted to a concrete cast plinth, and moulded and set into the concrete slab of the roof. At this Building, there are four central support poles, each holding one, two or three antennae.
According to the plan, the plant room roof is 10.5 metres above ground level and the top of the antennae is 13.5 metres above ground level. The central support poles are slightly lower than the top of the antennae. It is estimated that they are about 3 metres in height, perhaps slightly less.
The Defendant's decision was in a letter dated 9 June 2017, which was a response to a letter from the Claimant's solicitor. It read, so far as is material:
“….
You state that the electronic communications apparatus recently installed breaches paragraph A1(2)(c) of Part 16. Paragraph A1(2) of Part 16 states:
“In the case of the installation, alteration or replacement of a mast on a building which is less than 15 metres in height, the mast would be within 20 metres of the highway (unless the siting remains the same and the dimensions of the altered or replaced mast are no greater)”.
The reason is explained in Clue & Co's above letter. Mr Clues considers that the “tripod mounting support poles” as shown on the drawings constitute masts. The letter states that the antenna are mounted on a “structure consisting of horizontal and
vertical tubing with further tubing at 45 degrees to provide strength and stability”.It is considered that the poles are not a mast given the following factors. The support poles are not ground based. The scale and design of the support poles is not characteristic of a roof mast.
Given this there is not a breach of paragraph A1(2)(c) of Part 16.
….”
By order of the Court, the Secretary of State for Communities and Local Government (“the Secretary of State”) was joined as the Second Interested Party. He made written representations, through the Government Legal Department, but did not attend the hearing.
Statutory Framework
By section 57(1) of the Town and Country Planning Act 1990 (“TCPA 1990”), planning permission is required for the carrying out of development. By section 58(1)(a), planning permission may be granted by a development order made by the Secretary of State. By section 60, planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order, including conditions as to prior approval.
Article 3(1) of the GPDO provides that planning permission is granted for the classes of development described as permitted development in schedule 2. By article 3(2), any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in schedule 2.
Part 16 of schedule 2, entitled “Communications (Class A – electronic communications code operators)” describes the permitted development as follows:
“A. 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…”
The scope of the permitted development by Class A is subject to a number of exclusions which are set out in paragraph A.1. The exclusion relied upon the Claimant is in paragraph A.1(2)(c) which provides:
“Development consisting of the installation, alteration or replacement of electronic communications apparatus (other than small antenna and small cell systems) on a building is not permitted by Class A(a) if:
…..
(c) in the case of the installation, alteration or replacement of a mast on a building which is less than 15 metres in height, the mast would be within 20 metres of the highway (unless the siting remains the same and the dimensions of the altered or replaced mast are no greater);…”
Paragraphs A.4 and A.5 are interpretation provisions, set out under the heading “Interpretation of Class A”.
Paragraph A.4 provides that “for the purposes of Class A”, the term “mast” means a “radio mast or radio tower”.
The term “antenna” is not defined, but “antenna system” is defined as “a set of antennas installed on a building and operated in accordance with the electronic communications code”.
Paragraph A.4 also provides that, for the purposes of Class A, the term “electronic communications apparatus” has the same meaning as in the Communications Act 2003. Sections 151 and 106(1) of the Communications Act 2003, read together, provide that the term has the meaning set out in the “Telecommunications Code” in schedule 2 to the Telecommunications Act 1984, as amended.
Paragraph 1 of schedule 2 to the Telecommunications Act 1984 provides:
“(1) In this code, except in so far as the context otherwise requires –
…
“electronic communications apparatus” means —
(a) any apparatus (within the meaning of the Communications Act 2003) which is designed or adapted for use in connection with the provision of an electronic communications network;
(b) any apparatus (within the meaning of that Act) that is 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) any line;
(d) any conduit, structure, pole or other thing in, on, by or from which any electronic communications apparatus is or may be installed, supported, carried or suspended.
and references to the installation of electronic communications apparatus are to be construed accordingly.”
Paragraph 1 of schedule 2 explains the meaning of some of the terms included within this definition:
“ “line” means any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service;
“conduit” includes a tunnel, subway, tube or pipe;
“structure” does not include a building.”
Paragraph A.5 provides:
“Where Class A permits the installation, alteration or replacement of any electronic communications apparatus, the permission extends to any –
(a) casing or covering
(b) mounting, fixing, bracket or other support structure;
(c) perimeter walls or fences;
(d) handrails, steps or ramps; or
(e) security equipment
reasonably required for the purposes of the electronic communications apparatus.”
Because the Building was not within the conservation area, it was “unprotected land”, defined in paragraph A.4 as any land which is not article 2(3) land or a site of special scientific interest.
Section 5 of the National Planning Policy Framework provides policy and guidance on telecommunications installations, but its provisions were not relied upon by the parties in this case.
Submissions
It is common ground that the installation at the Building is less than 15 metres in height and within 20 metres of the highway. The disputed issue is whether or not the antennae are supported by a mast within the meaning of paragraph A.1(2)(c). The...
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