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:

“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 local community facilities and services.

…

46.

Local planning authorities must determine applications on planning grounds. They should not seek to prevent competition between different operators, [or] question the need for the telecommunications system...”.

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:

“any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed, or adapted for use and anything else principally used, or designed or adapted principally for use, for the display of advertisements”.

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:

“An advertisement displayed on the glazed surface of a telephone kiosk…”;

which is subject to a number of limitations including, so far as relevant to this appeal:

“(2)

Illumination is not permitted.”

“(4)

… [N]o advertisement may be displayed on more than one face of the kiosk.”

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:

“• New telephone equipment with the ability to accept credit/debit card, contactless and/or cash payment;

•

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:

“As noted, the reverse side of the replacement telephone kiosk would incorporate a 1650mm high by 928mm wide 1.5 sq m integrated LCD digital display panel. This is slightly less tall, narrower and 0.5 sq m (or 25%) smaller in terms of display area compared to a standard 6-sheet advertising display, of the type commonly found in bus shelters. The digital panel would display static advertising images in sequence, changing no more frequently than every 10 seconds, the change via a smooth fade…”.

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:

“a.

Prior approval

Because of its appearance, size and siting within the street scene, the telephone kiosk would be harmful to visual amenity and add street clutter to this part of the City. This would not meet S25 and S28 of Westminster’s City Plan (November 2016) and DES 1 and DES 7 of our Unitary Development Plan that we adopted in January 2007 and the Westminster Way Supplementary Planning Document (adopted 2011).

b.

Advertisement consent

Because of its location, capable display of (dynamic) moving images, size and method of illumination, the digital advertisement panel attached to a telephone kiosk, would harm the appearance (amenity) of the area. This would not meet S25 and S28 of Westminster’s City Plan (November 2016), DES 1, DES 8, DES 9 of our Unitary Development Plan that we adopted in January 2007.”

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:

“Planning permission is not required for the installation of a new telephone kiosk. They are permitted development but prior approval is required from the local planning authority…. The only issues that can be considered are design and siting of the kiosk.”

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):

“The application for prior approval does not fall within the ambit of Part 16 of the [GPDO], as it is not considered to be for the purpose of the electronic operator’s communication network and is not required for these purposes”.

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:

“… whether or not approval should be given in respect of the siting and appearance of the proposed kiosk, with particular regard to the effect on the character and appearance of the area.”

In paragraphs 5 and 6, he explained why:

“5.

… The Council makes reference to Policies S25 and S28 of Westminster’s City Plan and Policies DES 1 and DES 7 of its Unitary Development Plan. However, the principle of development is established by the GPDO and the prior approval provisions include no requirement that regard be had to the development plan. The provisions of the GPDO require the local planning authority to assess the proposed development solely on the basis of its siting and appearance, taking into account any representations received….

6.

The [NPPF]… deals with supporting high quality communications infrastructure, including applications for prior approval, and requires that local planning authorities must determine applications on planning grounds. 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 [NPPF] confirms that considerations such as need for the payphone kiosk, a telecommunications system, should not be questioned.”

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

“The Council has also expressed concern that the purpose of the proposed kiosk is primarily to facilitate the display of a large advertisement. However, the construction of a kiosk and the display of advertisements are distinct and separate matters requiring different applications where necessary.”

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):

“… that the siting and appearance of the proposed kiosk would not have an unacceptable effect on the character and appearance of the area and, therefore, the appeal should succeed.”

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

“… [T]he grant of prior approval for the payphone kiosk is subject to the standard conditions set out in the GPDO, including an implementation timescale, removal of the structure/apparatus when it is no longer required for electronic telecommunications purposes and accordance with the details submitted with the application…”.

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:

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:

“38.

The concept of the principle of development being established [by the GPDO itself]… means that the development which is being considered must all fall within the class in question, otherwise its ‘principle’ cannot be taken to have been established.

39.

A development therefore falls outside the scope of Class A Part 16 of it is not ‘for the purpose’ of the operator’s network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO. The benefits of the GPDO, a quicker process, the limited range of material considerations, and the restricted range of conditions would be used for a development, part of which they were not intended for, and which had not been judged to merit permission on that basis. A development which is partly ‘for the purpose’ of the operator's network, and partly for some other purpose, is not a development ‘for the purpose’ of the operator’s network, precisely because it is for something else as well. The single dual purpose development must be judged as a whole.”

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

“I do not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose. Part of its purpose was for the operator’s network, as a telephone kiosk. Part of it was to be the electrified advertising panel.

The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant. It does not matter whether it would have been lit if no advertisements were displayed. No relative significance has to be attributed to either part of the dual purpose; it is sufficient if the two purposes exist without the advertising use being ancillary or incidental or of no legal significance. There was no suggestion from the [decision letter] or the parties that the Inspector had or could have considered the advertising panel, for which separate consent had to be obtained, to be legally insignificant or merely incidental to the telecommunications use.”

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.

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.

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.

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.

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

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.