New World Payphones Ltd v Westminster City Council & Anor

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

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.

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 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

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:

Paragraph A.2 provided, so far as relevant:

…

… as soon as reasonably practicable after it is no longer required for electronic communications purposes; and

The relevant condition is found in paragraph A.3(4):

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:

apparatus designed or adapted for use in connection with the provision of an electronic communications network,

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,

lines, and

other structures or things designed or adapted for use in connection with the provision of an electronic communications network.

….

In this code—

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):

Where a proposed development falls within one of the GPDO classes, as a result of these provisions, the principle of development is not in issue – although that is not in itself necessarily determinative of the application because, to fall within the scope of permitted development within the GPDO, development has also to comply with any specified “exception, limitation or condition” which applies to the particular class (see, e.g., Infocus Public Networks Limited v Secretary of State for Communities and Local Government and the London Borough of Hammersmith and Fulham [2013]

Where development does not satisfy the class definition and conditions so as to fall within a class of permitted development, then the GPDO does not apply; although, of course, the developer can still apply for express planning permission in the usual way. However, in considering such an application, the consideration of the local planning authority will not be restricted to consideration of whether the class conditions (e.g., so far as Part 16 Class A is concerned, siting and appearance) are satisfied. The application will need to satisfy all of the planning requirements for an express grant, and will be the subject of the full rigour of the planning application regime to that end.

Section 220 in Chapter 3 of the 1990 Act gives the Secretary of State power to make provision “for restricting or regulating the display of advertisements”. For these purposes, “advertisement” is defined in section 336(1) as:

The relevant regulations are the Town and Country Planning (Control of Advertisement) (England) Regulations 2007 (SI 2007 No 783) (“the Advertisement Regulations”). By regulation 4, no advertisement can be displayed unless consent for its display has been granted either (i) by way of deemed consent under Part 2 or (ii) following an application, by way of express consent from the local planning authority under Part 3.

So far as deemed consent is concerned, by regulation 6, subject to identified limitations and conditions, consent is granted for the display of an advertisement of any class specified in Part 1 of Schedule 3. Class 16 is:

The relationship between the prior approval regime and the advertising consent regime was considered in Infocus Public Networks Limited v Secretary of State for Communities and Local Government and the Mayor and Commonality of the Citizens of London [2010] EWHC 3309 (Admin) (“Infocus No 1”), another case concerning permission for a telephone kiosk with an advertising display, in which (at [66]) Foskett J described the procedure for obtaining advertising consent as “a selfcontained code for the regulation of advertising material generally and, in this particular context, of advertising attached to the surface of a telephone kiosk”.

In addition to the provisions of the Advertising Regulations, section 222 of the 1990

I have set out the relevant provisions as at the time of the Inspector’s decision. However, since then, both sets of regulations have materially changed. From 25 May 2019, regulations 16 and 17 of the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 (SI 2019 No 907) amended the GPDO and the Advertisement Regulations so as to remove the permitted development right and any deemed advertising consent for telephone kiosks. Therefore, any proposed new telephone kiosk in the future will be subject to the full regime for express grant or consent.

However, this appeal is still of real significance because, aside from the issue of the lawfulness of the particular decision under the old regime in this case, the issues of law arising in this appeal remain potentially relevant to both the status of telephone kiosks already installed and to the interpretation of permitted development rights in other, extant classes.

NWP owns two telephone kiosks on the pavement outside 25-27 Marylebone Road, which it wishes to replace with one new kiosk, larger than each of the individual kiosks it would replace but not quite as large as both together. The “multi-functional capability” of the new kiosk is described in paragraph 2.3 of NWP’s Written Representations to the Inspector, as follows:

24 inch LCD display providing an interactive wayfinding capability;

Equipment for provision of public Wi-Fi access points and/or equipment for provision of public small-cell access nodes;

Location-based information (NFC, Bluetooth 4.0 LE); and

On the reverse side, a 1650mm (h) x 928mm (w) LCD display for digital advertising purposes, recessed behind toughened glass.”

With regard to the last bullet-point, it was said that the telephone kiosk would “incorporate an internally illuminated digital advertisement panel on the reverse side thereof” (paragraph 1.2); and that the replacement telephone kiosk and “integrated advertisement display” were “inextricably linked” (paragraph 1.3). Paragraph 2.5 gave a further description of the proposed LCD panel:

NWP considered that the development fell within Part 16 Class A of Schedule 2 to the GPDO, so that it was permitted development subject to prior approval from the local planning authority for its siting and appearance. On 4 July 2017, NWP applied to the Council for that approval. Given that it wished to use the display panel for illuminated advertisements, which were not permitted under the Advertisement Regulations, on 26 July 2017 it also applied to the Council for an express grant of advertising consent under those regulations.

On 6 September 2017, the Council refused both applications, giving the following reasons in respect of each:

Under section 78 of the 1990 Act and regulation 17 of the Advertisement Regulations respectively, NWP appealed to the Secretary of State in respect of both refusals. The Secretary of State appointed the Inspector to determine the appeals, which proceeded by way of written representations.

In paragraph 35 of its Written Representations to the Inspector, the Council said:

However, the Council considered that there was generally no need for new telephone kiosks, and no need for this particular kiosk; and, following its refusal of these applications, it sought legal advice as to whether applications for prior approval could be refused on the basis of the lack of need. Having received that advice, on 31 January 2018 the Council formally determined that the application for prior approval in this case should be refused on the additional basis that there was no need for further kiosks for the purposes of an operator’s electronic communications network. It also decided that, where such a need was not raised as a reason for refusal but there was an extant appeal, the issue should be raised at the appeal. Thus, it was raised before the Inspector.

In fact, in Appendix 2 to its Written Representations to the Inspector, the Council raised not one but two grounds of refusal over and above those relating to siting and appearance. First, as presaged, it submitted that an additional reason for the refusal was the lack of need for the new telephone kiosk (paragraph 11). Second, as a yet further ground for refusal, it said (at paragraph 12):

In a decision letter dated 27 June 2018, the Inspector dismissed the appeal in respect of the refusal of consent under the Advertisement Regulations (and there has been no challenge to that part of his decision); but allowed the appeal in respect of the GPDO, and he granted prior approval in respect of the new kiosk.

With regard to prior approval, at paragraph 7, he identified the main issue as:

In paragraphs 5 and 6, he explained why:

The Inspector expressly rejected any requirement to consider the purpose of the development. He stated (at paragraph 14):

He considered siting and appearance, for example finding (at paragraph 13) that the kiosks would be “sufficiently well-separated” so as not to appear as “visual clutter”, and concluding (at paragraph 16):

With regard to conditions, he said (at paragraph 23):

On 7 August 2018, Westminster issued proceedings under section 288 of the 1990 Act to challenge the Inspector’s prior approval decision, raising in substance two grounds of challenge, namely:

The Inspector erred in not accepting that the proposed development did not fall within Part 16 Class A of Schedule 2 of the GPDO because it was not for the purpose of the provision of an electronic communications network.

The Inspector erred by refusing to address the need for the development.

In a judgment dated 5 February 2019, Ouseley J allowed the appeal on the first ground, and quashed the Inspector’s decision. Referring to the judgment of Lindblom LJ in Keenan v Woking Borough Council and Secretary of State for Communities and Local Government [2017] EWCA Civ 438, he stressed the requirement for any development to fall “fully” or “squarely” within the applicable class of the GPDO in order for permission to be granted by it (see [37]). As Ouseley J put it:

Having rejected a test based on “dominant purpose”, in favour of one essentially based on “single purpose”, he continued (at [42]):

However, having allowed the appeal on that ground, in respect of need, he accepted that the GPDO, with its limited range of material considerations, precluded any argument about whether electronic communications networks (and the facilities required for their use, including telephone kiosks) are “needed” in the public interest; and he therefore refused the Council’s appeal on the second ground.

The issue in the appeal by NWP is whether the proposed development, in the form of a telephone kiosk with an integrated illuminated advertisement display panel, fell within the scope of development permitted by Part 16 Class A of Schedule 2 to the GPDO. The judge concluded that it did not. Ms Sheikh contends that he was correct, essentially for the reasons he gave.

Mr Stinchcombe submits that the judge erred in concluding that the proposed development fell outside the scope of development permitted by Part 16 Class A because it was “dual purpose”, on the following basis.

Proposals to place a telephone kiosk on the footway and to incorporate advertising into that kiosk respectively engage two entirely discrete regimes: the prior approval regime (under which permission can be obtained as permitted development) and the self-contained regime controlling advertisement (under which consent is required which can in some circumstances be deemed, but if the proposed advertisement is illuminated then consent must be by way of express grant on the basis of an application) (Infocus No 1).

In its application under the GPDO, NWP applied for only prior approval for the development under the Class 16 Part A, under which only siting and appearance fall to be considered (Infocus No 1 and Infocus No 2).

Since the Inspector concluded that the siting and appearance of the proposed kiosk were acceptable in planning terms, he was bound to grant approval. He certainly did not err in doing so.

Mr Stinchcombe relied upon eight strands of argument in support of these propositions and his submission that Ouseley J was wrong to overturn the Inspector’s decision.

NWP’s subjective purpose in pursuing the development is irrelevant. Under the prior approval regime, an application can only seek approval on the restricted basis that the siting and appearance of the proposed development are acceptable in planning terms. That is all that NWP applied for here. The scope of the Inspector’s task was restricted by the application that was made and which, on appeal, he was re-considering. The kiosk will serve a communications purpose, even if that is not its only or main purpose. The proposed advertising was not the subject of the prior approval application, but rather of the application for consent under the discrete, entirely self-contained Advertisement Regulations regime. Indeed, when considering the prior approval application, the Inspector was well aware that he was going to uphold the refusal of the advertising consent, and so was aware that any kiosk installed as permitted development would and could only be used exclusively for communications purposes.

In oral argument confirming paragraph 42 of his skeleton argument, Mr Stinchcombe accepted the proposition at [47] of Ouseley J’s judgment that, if a kiosk is not designed from the outset potentially to accommodate an illuminated panel and an application is subsequently made to alter the kiosk for that sole purpose, the GPDO would not apply and express planning consent would be required. Ouseley J considered that this supported the construction he favoured; because there was no good reason why the application of the GPDO should depend on a difference in the way in which an identical kiosk came to be proposed, i.e. the sequencing of the applications. However, Mr Stinchcombe submitted that it did not support that construction, because, under the proposed development to include the advertising panel:

the kiosk would continue to serve a communications purpose;

it would be inevitable that any application for planning permission for the alteration of the kiosk to accommodate the advertising panel would be granted, because it has to be assumed that the design of the kiosk in planning terms – the only material consideration – would already have been accepted; and

in any event, an advertisement could only be displayed if it obtained deemed or express advertising consent in which case only if independently considered by the local planning authority to be acceptable.

Mr Stinchcombe submitted that Ouseley J’s “dual purpose” approach to the interpretation of the GPDO is impossible to reconcile with the facility to display non-illuminated advertisement on a telephone kiosk with the benefit of deemed consent under the Advertisement Regulations. At the relevant time, subject only to prior approval for siting and appearance, an electronic communications code operator such a NWP could install a kiosk which would

Ouseley J said that a “dominant purpose” approach inevitably and wrongly engages the planning decision-maker in an investigation of the motive of the operator; but, Mr Stinchcombe submitted, so does the “sole purpose” approach the judge himself adopted, because, although using a different threshold, the decision-maker would be required to ascertain whether advertising use was part of a “dual purpose” or whether it was merely “incidental or ancillary” to communications as a “single purpose”. For the same reason as Ouseley J rejected “dominant purpose”, he should also have rejected the “single purpose” approach.

Mr Stinchcombe submitted that Ouseley J’s approach potentially has widespread implications for many other parts of the GPDO. For example, Schedule 2 Part 9 Class C grants highway authorities deemed consent for development “required for the purposes of the carrying on of any tramway or road transport undertaking consisting of… the erection… of passenger shelters”; Part 12 Class A grants local authorities deemed consent for the erection of “passenger shelters, public shelters… required in connection with the operation of any public service administered by them”; and Part 19 Class A grants deemed consent for development by or on behalf of the Crown for the erection of “passenger shelters, shelters… required in connection with the operational purposes of the Crown”. Many of these shelters have advertisements on them which to an extent, in the public interest, defray the cost of the shelters. If such development could not fall within the GPDO because it had a dual purpose, then none of this development would fall within the provisions of permitted development and it would have to be the subject of an application for express grant. That is not a consequence which Parliament or the draftsman of the GPDO could have intended.

Even where such public facilities are funded by advertising, the fundamental identity, public service and purposes of such facilities remain unchanged. A telephone kiosk with an advertising revenue stream is still a telephone kiosk.

The Council’s concern, that the real purpose behind the application for prior approval was not to provide communications services but advertising, is unfounded. If that were the case, this kiosk will not now be installed, because it has no advertising consent. On the other hand, if that were not the case, then the kiosk will be installed without advertising and will be used exclusively for communications purposes. In either event, there is no mischief here.

However, if there were a mischief, then it is not a matter for the courts to address: it is a result of the scope of the GPDO, and it is a matter for Parliament or the executive to address it by amending the GPDO (as, of course, the Secretary of State has now done in respect of telephone kiosks and advertising on such kiosks).

With regard to the relevant principles, forcefully as these submissions were made, I am unable to accept them, largely for the reasons set out in Ms Sheikh’s submissions.

The GPDO describes classes of “permitted development” for which planning permission is granted without the requirement for a planning application to be made under Part 3 of the 1990 Act. To fall within a class, development not only has to comply with the class description, but also has to satisfy a series of conditions and limitations unique to that particular class. If it does not do so, then it is not permitted under the GPDO; and planning permission can only be obtained on the basis of a full application.

To take the advantage of being permitted development, the proposed development must fall entirely within the scope of the GPDO. Mixed use development cannot take advantage of that benefit – because, if it were to be able to do so, the GPDO could and would be used for permitting development for something outside its scope, i.e. the part of the development that does not fall with a permitted development class.

In support of that proposition, Ms Sheikh relied upon Keenan upon which Ouseley J also relied (see paragraph 42 above). In Keenan, the local planning authority failed to respond within time (in that case, 28 days) to an application for prior approval for the “siting and means of construction” for a hardcore track in a unit of land which, it was said, fell within Part 6 (or Part 7) Class A in Schedule 2 to the GPDO as being a private way reasonably necessary for the purposes of agriculture (or forestry) in that unit. It was submitted that, in those circumstances, there was deemed prior approval, and the development could begin (see paragraph 13 above). However, Lindblom LJ (with whom Lewison LJ agreed) held that the track did not become permitted development by default, because “the development proposed had to fall squarely within the description of ‘permitted development’, in the relevant class” (see [35]). It did not do so because the unit of land was not being used for the purpose of agriculture or forestry at that time. The condition requiring a developer to apply for a determination as to whether its “prior approval” would be required to the siting and means of construction of the private way “[did not] confer upon the authority a power to grant planning permission for development outside the defined class of permitted development” (see [36]). I accept that the reason why the development in that case fell outside the scope of the GPDO was very different from why the development in this case is said to do so: but, in my view, the principle equally applies. In particular, contrary to Mr Stinchcombe’s (in my view, somewhat circular) submission, an application for prior approval on the basis that the development satisfies the restricted criteria relevant to such approval (i.e. in this case, siting and appearance) cannot in any way extend the scope of the GPDO.

Part 16 Class A in Schedule 2 to the GPDO includes, as permitted development, “the installation, alteration or replacement of any electronic communications apparatus”, which expressly includes “the construction, installation, alteration or replacement of… a public call box” (see paragraphs 11-12 above). The proposed development in this case patently includes such

Therefore, the true construction of the GPDO means that, as a general proposition, to be “permitted development”, the whole of any development must fall within the scope of a class in Schedule 2 of the GPDO, by falling within the relevant definition and satisfying any express restrictions as to

Mr Stinchcombe relied upon the “concession” of the Council in paragraph 35 of its Written Representations to the Inspector (quoted at paragraph 32 above), that “the only issues that can be considered [in an application for prior approval for Part 16 Class A permitted development] are design and siting of the kiosk”; but that concession was clearly made only on the basis that the development otherwise met the Part 16 Class A definition for permitted development. Similarly, his reliance on Infocus No 1 and Infocus No 2 was, in my view, misplaced: the observations made in those cases about the principle of development not being in issue (see paragraph 17 above) were made in the context of cases in which it was not in issue that, but for prior approval, the development satisfied the definition of permitted development in Part 16 Class A. In the case before the Inspector, Ouseley J and now us, whether the development falls within the definition of the class was and is very much in issue.

In my view, the Advertisement Regulations are also something of a red herring. Subject to the effect of section 222 of the 1990 Act, those Regulations concern the display of advertisements, not planning permission for buildings etc upon which advertisements might be displayed. viii) At [45] of his judgment, Ouseley J said that:

Before applying those principles to this case, I should deal specifically with the strands of argument relied upon by Mr Stinchcombe which I have already identified. I do so in the same order.

It is, rightly, common ground that NWP’s subjective purpose in pursuing the development is irrelevant: what is relevant is the use or purpose of the proposed physical structure that comprises the development. In any event, as I have explained, the form of the application cannot determine whether any proposal falls within a permitted development class. In Keenan (at [36]), Lindblom LJ said that an application to a local planning authority for a determination as to whether its “prior approval” would be required does not impose on the authority a duty to decide whether the proposed development is in fact permitted development under the GPDO. But the thrust of that paragraph of Lindblom LJ’s judgment was that, by requiring a developer to seek prior approval limited to restricted planning issues, that did not confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. On an application to an authority for a determination as to whether its “prior approval” is required, then the authority is bound to consider and determine whether the development otherwise falls within the definitional scope of the particular class of permitted development.

I agree that the form or sequence of applications should have no effect on whether development falls within the GPDO; but I do not consider that the interpretation I favour (essentially that adopted by Ouseley J) draws any distinction. If the development includes a structure for the purposes of displaying advertisements, then, subject to section 222, that will require an express grant of planning permission, whether it is included in an application for a development with mixed use or, subsequent to a telephone kiosk being installed as permitted development, in a discrete application for planning permission for the display panel. In this case, section 222 had no possible part

Mr Stinchcombe submitted that Ouseley J’s “dual purpose” approach to the interpretation of the GPDO is impossible to reconcile with the facility to display non-illuminated advertisement on a telephone kiosk with the benefit of deemed consent under the Advertisement Regulations. However, again I do not agree. Subject to section 222, the Advertisement Regulations only concern the consent to the display of advertisement, not planning permission for the structure upon which the advertisement is displayed. That applies equally to a structure designed for illuminated display and a structure designed for the nonilluminated display of advertisements. Part 1 Class 16 of Schedule 3 to the Advertising Regulations merely allowed the display of a non-illuminated advertisement on the glazed surface of a telephone kiosk, not the construction of a particular structure for the display of such an advertisement.

I do not consider Mr Stinchcombe’s criticism of Ouseley J’s consideration of “purpose” is warranted. The judge held that “dominant purpose” had no part to play, but it was necessary for the planning decision-maker to consider whether the development was one of “dual purpose” because the GPDO only permitted development that fell within a particular GPDO class and was, to that extent, single purpose. That did not import subjective purpose, but merely requires the planning decision-maker to make an assessment of the purpose of the development. That is a usual planning function.

and vi) With regard to Mr Stinchcombe’s submission that Ouseley J’s approach potentially has widespread adverse implications for many other parts of the GPDO, notably for development in those classes which cover public shelters of one sort or another, I am unconvinced. Part 1 of Schedule 3 to the Advertising Regulations (which sets out the display of advertisements for which there is deemed planning consent: see paragraph 22 above) does not include advertisements (of whatever type) on such shelters (again, of whatever type), so that an application for express consent must always be made. Whether a particular shelter has a mixed use will ultimately be a question of fact and, in the absence of evidence or full argument on shelters, it would be unwise to offer any view; and I decline to do so. However, I do not consider that the position of shelters demonstrates that the construction I favour leads to impractical consequences or is wrong.

I finally turn to the application of the principles to the facts of this case. I can do so briefly.

As I have already indicated, the issue in this appeal is whether the proposed development fell within the scope of development permitted by Part 16 Part A.

Whilst there may be cases in which an exercise of planning judgment is required to assess whether proposed development does or does not fall entirely within a class of permitted development, in my view, this is not such a case: it is not possible properly to conclude that it does.

I have already described the development in terms of a telephone kiosk that would “incorporate an internally illuminated digital advertisement panel on the reverse side thereof” (see paragraphs 27 and 28 above); in other words, the proposed development comprised a structure, part of which (namely a public call box which, by virtue of paragraph A.2 of Part 16 Class A (quoted at paragraph 12 above), is included within the definition of electronic communications apparatus) had the planning use or purpose of being part of an electronic communications network; and a part of which (namely the electronic display panel) had the planning use or purpose of the display of advertisements.

Whilst a public call box was permitted development within Part 16 Class A of Schedule 2 to the GPDO, the electronic display panel was not within any permitted class. The GPDO could not be used to obtain planning permission for a mixed planning use or “dual purpose”, because to allow it to be so used would allow permission to be obtained for development that was outside the scope of that permitted by executive (and, ultimately, by Parliament) under the GPDO, which would be an abuse of the GPDO.

Whilst, in my view, that was so on general principles, in this case, the general proposition is reinforced by the particular provisions which apply to telephone kiosks, because, as I have described and as Mr Stinchcombe accepts, for the purposes of the definition of “electronic communications apparatus”, a telephone kiosk is a “structure” and a “building”; and for these purposes, by virtue of paragraph 5(3) of Schedule 3A to the 2003 Act (the Electronic Communications Code):

For those reasons, in my view, Ouseley J was right to conclude that the proposed development fell outside the scope of the GPDO, and was right to quash the prior approval on that ground.

Ouseley J rejected the Council’s appeal on the basis that the Inspector was wrong not to take into account the (lack of) need for telephone kiosks. The Council crossappeal, on the basis that that conclusion was wrong and/or inadequately reasoned.

Before us, Ms Sheikh did not press these grounds; and, in my view, she was right not to do so. The express criteria for development to fall within any particular class in Schedule 2 are detailed and comprehensive. Whilst “need” is a well-recognised planning requirement in other circumstances, it plays no part in the requirements for Part 16 Class A. It is part of the principle of planning consent that is assumed. Ouseley J was right to find as much (at [49] of his judgment).

For the same reason, he was also right to reject Ms Sheikh’s submission that the condition imposed upon the grant of prior approval, that the telephone kiosk will be removed when no longer required, necessarily imports words into the test for prior approval that the kiosk must be “required for the purpose of” the operator’s network, and that that imports a “need” test (see [50] of his judgment). That means, at least theoretically, that if development satisfied all of the criteria for Part 16 Class A and there was in fact no need for the particular kiosk proposed, the electronic network operator could install it, only in due course to be required to remove it as redundant. But, if ever that were more than a theoretical issue, the answer to it lay with the executive which could recognise the factual lack of need by removing the class of development from the GPDO (as Part 16 Class A was removed in May 2019).

For those reasons, I would dismiss both the appeal and the cross-appeal, leaving the order of Ouseley J quashing the Inspector’s determination and the Council’s decision to refuse the prior approval application in place.

I agree.

I also agree.