R (on the application of Nigel Mawbey) v Cornerstone Telecommunications Infrastructure Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Holroyde,Lady Justice King |
| Judgment Date | 17 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/0558 |
| Date | 17 June 2019 |
[2019] EWCA Civ 1016
Lady Justice King
Lord Justice Lindblom
and
Lord Justice Holroyde
Case No: C1/2018/0558
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Lockhart-Mummery Q.C. and Ms Heather Sargent (instructed by DAC Beachcroft LLP) for the Appellant
Mr Andrew Parkinson (instructed by Richard Buxton Environmental & Public Law) for the First Respondent
The Second and Third Respondents did not appear and were not represented.
Hearing date: 28 March 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
Under Class A of Part 16, “Communications”, of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) what is a “mast” within paragraph A.1(2) – which excludes from the scope of permitted development certain forms of “building based apparatus other than small antenna and small cell systems”? That is the main question in this appeal.
The appellant, Cornerstone Telecommunications Infrastructure Ltd., appeals against the order of Lang J. dated 16 February 2018, in a claim for judicial review brought by the first respondent, Mr Nigel Mawbey, by which she quashed the determination of the second respondent, the London Borough of Lewisham Council, recorded in a letter of 9 June 2017 to Mr Mawbey's solicitor, that the electronic communications apparatus installed by Cornerstone Telecommunications on the roof of Forsythia House in Pendrell Road, Brockley was permitted development under Class A of Part 16. The council defended its decision in the court below, but has not appeared in this court. The third respondent, the Secretary of State for Communities and Local Government, was joined as an interested party in the court below, and written comments on the matters in issue in the claim were made on his behalf by the Government Legal Department on 31 August 2017.
Mr Mawbey's home is in Pendrell Road, within the Telegraph Hill Conservation Area. Forsythia House is a block of flats outside the conservation area, owned by Lewisham Homes, which manages social housing on behalf of the council. Lewisham Homes granted Cornerstone Telecommunications a licence to erect the apparatus on a plant room on the roof of the building. The apparatus comprises nine antennae, mounted in groups on the four corners of the plant room roof. Each antenna is supported by an antenna pole, attached by a yoke arm to one of four central support poles. Each central support pole holds one, two or three antennae. It 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. Forsythia House is 8.2 metres in height, and the plant room rises a further 2.3 metres, to 10.5 metres above ground level. At their top the antennae are 13.5 metres above ground level, the central support poles slightly lower.
Lang J. concluded that, in its determination, the council adopted a wrong understanding of paragraph A.1(2)(c) of Part 16, and that its decision was “irrational”. I granted permission to appeal on 3 October 2018.
The issues in the appeal
The appeal is on three grounds: first, that the judge's interpretation of the word “mast” as defined in paragraph A.4 of Part 16 was “too broad and is wrong in law”; second, that she was wrong to conclude that the council's decision was “irrational”; and third, that she was wrong to find that each “central support pole” was a “mast”. The critical issue, however, is one of statutory construction: the correct interpretation of paragraph A.1(2)(c), which provides that the installation of a mast on a building less than 15 metres in height, when the mast would be within 20 metres of the highway, is not permitted development. Forsythia House is less than 15 metres in height and the apparatus is within 20 metres of the highway. The dispute, therefore, is whether the council misunderstood the relevant definition of a “mast”. It is common ground that if the central support poles fall within that definition, an express grant of planning permission for their erection was necessary.
The legislative framework in place at the time of the council's decision
Under section 57(1) of the Town and Country Planning Act 1990 planning permission is required for the carrying out of development. Section 58(1)(a) provides that planning permission may be granted by a development order made by the Secretary of State, which, under section 60(1), may be either unconditional or subject to conditions or limitations specified in the order. Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2. Article 3(2) provides that “[any] permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2”.
The permitted development rights in Class A of Part 16 of Schedule 2 are for development by an “electronic communications code operator”:
“Permitted development
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 …
…”.
8. Under paragraph A.1 certain apparatus is not permitted development:
“Development not permitted
A.1. – Development not permitted: ground-based apparatus
(1) Development consisting of the installation, alteration or replacement of electronic communications apparatus (other than on a building) is not permitted by Class A(a) if –
(a) in the case of the installation of electronic communications apparatus (other than a mast), the apparatus, excluding any antenna, would exceed a height of 15 metres above ground level;
(b) in the case of the alteration or replacement of electronic communications apparatus (other than a mast) that is already installed, the apparatus, excluding any antenna, would when altered or replaced exceed the height of the existing apparatus or a height of 15 metres above ground level, whichever is the greater;
(c) in the case of the installation of a mast, the mast, excluding any antenna, would exceed a height of –
(i) 25 metres above ground level on unprotected land …
…
(d) in the case of the alteration or replacement of a mast, the mast, excluding any antenna, would when altered or replaced –
…
(ii) together with any antenna support structures on the mast, exceed the width of the existing mast and any antenna support structures on it by more than one third, at any given height.
…
Development not permitted: building-based apparatus other than small antenna and small cell systems
(2) 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 –
(a) the height of the electronic communications apparatus (taken by itself) would exceed –
(i) 15 metres, where it is installed on a building which is 30 metres or more in height; or
(ii) 10 metres in any other case;
(b) the highest part of the electronic communications apparatus when installed, altered or replaced would exceed the height of the highest part of the building by more than –
(i) 10 metres, in the case of a building which is 30 metres or more in height;
(ii) 8 metres, in the case of a building which is more than 15 metres but less than 30 metres in height; or
(iii) 6 metres in any other case;
(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);
… .
Development not permitted: antennas and supporting structures installed, replaced or altered on article 2(3) land or land which is a site of special scientific interest
(4) Development consisting of the installation, alteration or replacement of an antenna, a mast or any other apparatus which includes or is intended for the support of an antenna, or the replacement of an antenna or such apparatus by an antenna or apparatus which differs from that which is being replaced, is not permitted by Class A(a) [(a) on any article 2(3) land or (b) on a site of special scientific interest, unless certain criteria are met]”.
Paragraph A.2 sets out the relevant “Conditions”. Its provisions include:
“A.2 – (1) Class A(a) and A(c) development is permitted subject to the condition that –
(a) the siting and appearance of any antenna or supporting apparatus, radio equipment housing or development ancillary to radio equipment housing constructed, installed, altered or replaced on a building (excluding a mast) are such that the effect of the development on the external appearance of that building is minimised, so far as practicable; …
(3) … Class A development –
…
(c) on unprotected land where that development consists of –
(i) the installation of a mast …
…
is permitted subject … to the conditions set out in paragraph A.3 (prior approval).
…”.
The provisions for “Prior approval” in paragraph A.3, where they apply, include a requirement for notice to be given by or on behalf of the developer, stating “a description of the...
To continue reading
Request your trial
-
The King (LW Zenith Ltd) v Secretary of State for Levelling UP, Housing and Communities
...ordinary meaning of the language used is to be ascertained in a broad, commons sense manner (per Lindblom LJ in Mawbey v Lewisham LBC [2020] PTSR 164 at paragraph 20). The approach to the interpretation of planning conditions is to ask what a reasonable reader would understand the words to ......
-
CAB Housing Ltd v Secretary of State for Levelling UP, Housing and Communities
...EWCA Civ 1579, at paragraphs 30 and 31, and the leading judgment in R. (on the application of Mawbey) v Lewisham London Borough Council [2020] PTSR 164, at paragraph 20). 23 As Holgate J. explained (in paragraph 31 of his judgment), the grant of the “permitted development” right under Class......
-
Paul Smolas v Herefordshire Council
...scope of the particular class of permitted development.” 57 In R (Mawbey) v Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 1016, Lindblom LJ confirmed the correct approach to construing the provisions of the GPDO, at [20]: “The correct approach to construing provisions o......
-
Cab Housing Ltd v The Secretary of State for Levelling UP, Housing and Communities
...as opposed to private, facing elevations. Principles of statutory interpretation 63 In R (Mawbey) v Lewisham London Borough Council [2020] PTSR 164 Lindblom LJ held at [20] that common words used in a permitted development right are to be given their common meaning, unless there is somethin......
-
Consultation On New Permitted Development Rights For Telecomms Apparatus
...progressed. However, some comfort may be gained from another recent decision, Mawbey v Cornerstone Telecommunications Infrastructure [2019] EWCA Civ 1016, where the Court of Appeal discussed whether or not a central support pole was a radio mast - in this case, it was decided that such po......