Westminster City Council v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] EWHC 176 (Admin) |
| Docket Number | Case No: CO/3111/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 February 2019 |
[2019] EWHC 176 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/3111/2018
and
Ms Saira Kabir Sheikh QC (instructed by BI-BOROUGH SHARED LEGAL SERVICES) for the Claimant
Mr Mark Westmoreland Smith (instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Mr Paul Stinchcombe QC (instructed by SQUIRE PATTON BOGGS) for the Interested Party
Hearing dates: 15 January 2019
Approved Judgment
New World Payphones Ltd, the Interested Party, is 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 SI No. 596, the GPDO. It wanted to replace two existing telephone boxes with a single new kiosk outside 25–27 Marylebone Road, London, in the area of Westminster City Council. The intended exercise of the permitted development rights within the GPDO required New World Payphones to apply to the City Council for a determination as to whether its prior approval was required for the siting and appearance of the new kiosk. New World Payphones' application was refused, but its appeal to the Secretary of State for Housing, Communities and Local Government was successful. The appeal was decided by an Inspector upon written representations and a site visit. The decision letter, DL, is dated 27 June 2018. Westminster City Council challenges the lawfulness of that decision under s288 of the Town and Country Planning Act 1990.
New World Payphones also applied to the City Council for express consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, for the “display of illuminated digital advertisement panel…as part of new telephone kiosk”. This panel was on the rear of the proposed kiosk. Consent was refused. New World Payphones lost its appeal against that refusal. Its appeal was dealt with by written representations together with the prior approval appeal. The same DL dealt with both issues. There is no challenge to the decision to refuse advertising consent.
Westminster City Council contends first that the grant of prior approval was outside the powers conferred by the GPDO because the new kiosk was not “for the purpose” of the operator's electronic communication network, but instead was primarily for the purpose of advertising via the illuminated panel. Second, but related, the City Council contended that the Inspector had ignored an issue which it raised, namely that there was no need for the proposed kiosk. There had to be a need for the proposal before it could come within the scope of permitted development in Class A of Part 16 of the GPDO, and before consideration of its siting and appearance could be relevant. Third, as a form of belt and braces, it contended that the Inspector's approach to the need for and purpose behind the proposed kiosk was irrational or inadequately reasoned.
These grounds reflect a growing concern, at least within the City Council's area, about a proliferation of prior approval applications in relation to telephone kiosks along with advertising consents; it contends that little use is made of the kiosks for electronic communications, and that the electronic communications network operator, many of which are owned by advertising companies, see the kiosk as a means of displaying advertisements. Indeed, the City Council obtained permission to introduce quite detailed evidence into the appeal, to support these concerns, and to explain the City Council's programme of monitoring kiosks, which were little used or not used at all. This was all in support of its contention that the need for such kiosks was a material planning consideration. There was a reply from New World Payphones. Most of this evidence was not before the Inspector, I am prepared to consider that evidence only for the purpose of explaining the City Council's concern behind its appeal. Beyond that, I regard that evidence, insofar as it was not before the Inspector, as inadmissible to support a challenge on the grounds that the decision was outside the powers of the Inspector or one for which he provided legally inadequate reasons. It has played no part in my conclusions.
The legislative and policy framework
“Planning permission may be granted by a development order”; s58(1) of the 1990 Act. “A development order may either (a) itself grant planning permission for development specified in the order for development of any class specified;…”; s59(2). The relevant Order for that purpose is the GPDO. Article 3 (1) provides: “Subject to the provisions of this Order…, planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.” Such a planning permission is subject to any exception, limitation or condition specified in the schedule.
Schedule 2 Part 16 is the relevant part; it relates to “Communications”. Class A deals with “electronic communications code operators”. It defines Class A thus:
“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….”
Conditions are imposed by paragraph A2, materially in A.2 (2):
“(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 –
(ii) in any other case, as soon as reasonably practicable after it is no longer required for electronic communications purposes; and….;”
By paragraph A.2 (3) certain forms of Class A development are permitted subject to the condition that prior approval be obtained under paragraph A.3. These include, by A.2 (3) (c)(iii) “the construction, installation, alteration or replacement of — (aa), a public call box.”
Paragraph A.3 sets out the procedure for applying for prior approval from the local authority, and at A.3 (4) provides that:
“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.”
By subparagraph (8), development cannot begin until the determination of whether prior approval is required and, if so, its grant.
The various definitions relevant to electronic communication code operators cross refer to the Communications Act 2003. Mr Stinchcombe QC for New World Payphones pointed to the definition of an “electronic communications system” in s32, because one aspect of Ms Sheikh's submissions created some doubt as to whether she was saying that a kiosk fell outside its scope. An “electronic communications system” is a transmission system for the conveyance of signals of any description, and a signal included anything which comprised speech, sounds, visual images or communications or data of any description. I am satisfied that telephone kiosks in principle and this kiosk in particular would be part of that system, about which a comment by the City Council had introduced some uncertainty.
The Decision Letter
The written submissions accepted that the New World Payphones was an electronic communications code operator, entitled to benefit from Part 16 Class A of the GPDO. The Inspector took into account various policies of the City Council's Unitary Development Plan and a Supplementary Planning Document in so far as they were relevant to siting and appearance. This approach was not controversial. He also referred to the National Planning Policy Framework, NPPF, for its support for high-quality communications infrastructure, and because it requires local planning authorities to determine applications for prior approval on planning grounds. Paragraph 45 of the NPPF explained that applications related to telecommunications, including applications for prior approval under the GPDO, “should be supported by the necessary evidence to justify the proposed development.” Paragraph 46 stated that applications should be determined on planning grounds and authorities should not question the need for the telecommunications system or seek to prevent competition between operators.
The Inspector commented, at DL6: “The Council has expressed concern relating to the need for a proposed kiosk. However, the principle of development is established by the GPDO and the Framework confirms that considerations such as need for the payphone kiosk, a telecommunications system, should not be questioned.” Ms Sheikh QC for the City Council submitted that that involved the wrong approach to “need”, and was an inadequately reasoned response to the City Council's representations.
The Inspector then focused on the issues relating to siting and appearance. I do not need to set out his appraisal of the siting and appearance of the proposed kiosk. No complaint is made about his planning judgment of those issues, save for those which Ms Sheikh made about the role of the purpose of the operator and need.
The Inspector said this at DL14 and 15 about the City Council's expressed concern that the purpose of the proposed kiosk was primarily to facilitate the display of a large advertisement:
“However, the construction of a kiosk and the display of advertisements are distinct and separate...
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