Wednesday, 22 December 2010

A telecoms case

I have in the past been professionally involved in planning problems relating to phone boxes and the advertising material displayed in them. [Stop sniggering at the back! I’m not talking about that sort of advertising.] So I was interested to see the High Court judgment in Infocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin), in which judgment was given on 17 December. [As an aside, it is interesting to note that, although the phone boxes in question are in the City of London, and the Corporation of London was second defendant, this s.289 application was issued in the Birmingham District Registry and heard in Birmingham.]

The case raised two interesting points. First, on what date is a prior notification under Part 24 in the GPDO made where a fee cheque is forwarded to the LPA after the prior notification was sent electronically? Secondly, if the LPA (and subsequently an Inspector on appeal) have to determine whether approval should be given, what are the material considerations which may be taken into account and, in particular, is the actual or potential display of advertisements a material consideration in this context?

It is clear from the provisions of Part 24 that the 56-day period which an LPA has in which to respond to the prior notification begins on the date on which the LPA received the application. The first issue in the appeal to the court was whether, and if so, when an effective or valid application was received by the LPA, because it is from that point that time begins to run. Paragraph A.3.4(a) of Part 24 and paragraph 6(e) of Annex 1 to PPG 8 state that the application must be "accompanied" by the relevant fee. It does not seem that this has ever been interpreted literally, because, whilst it is possible to make an application online, it has not been possible until fairly recently for the fee to be paid online (and not all LPAs may yet offer this facility). So, as in this case, the fee often has to be paid separately, usually by means of a cheque sent through the post.

In this case, applications were made electronically via the LPA’s website in respect of seven telephone kiosks on Monday 23 February 2009 and a letter was sent that day by post enclosing the cheque. The Appellant therefore contended that the completed applications were received by the LPA on Wednesday 25 February 2009, and that the LPA accordingly had 56 days, until Tuesday 21 April 2009, to communicate its decision. However, the LPA seems to have had a reliable system for recording the date of receipt of incoming post, and this showed that the letter from the company dated 23 February 2009 enclosing the fee cheque for £3,350 was received on 3 March 2009, so that they had until about 28 April to deal with the matter. The Appellant, on the other hand, simply assumed that there had been delay in the LPA in processing the post upon receipt, which accounted for receipt of the cheque not being recorded until 3 March, particularly since another letter to the LPA also sent on 23 February had been date-stamped as having been received by the LPA on 24 February.

On 21 April, the Appellant informed the LPA that they would be installing the kiosks within 7 days of Friday 24 April 2009, as per the Opening Notices that were sent to the LPA on 21 February 2009. On or around Monday 27 April 2009, the Appellant received a letter from the LPA, dated 23 April 2009, advising the Appellant that prior approval had been refused. The reason for the refusal was that the size, design, appearance and position of the proposed kiosk would detract from the townscape by adding visual clutter to the street. In addition, the LPA believed that the proposed kiosks would be more prominent in the street as it was intended that advertisements would be placed on them. However, the Appellant took the view that the LPA was out of time in giving its decision, and so they went ahead and erected the kiosks between 24 April and 1 May and the LPA subsequently issued and served enforcement notices in respect of this development.

Reference was made in the judgment to the decision of the Court of Appeal in Murrell v SSCLG [2010] EWCA Civ 1367 on which I commented recently (see “Agricultural Permitted Development”, posted on 13 December 2010). In the present case, however, the burden of proof was on the appellant to show proof of the date of posting. If there had been evidence of that nature, it might have been open to the Inspector to conclude that the cheque was indeed received a day or so after 23 February (possibly relying, if appropriate, on Section 7 of the Interpretation Act 1978) and that any failure to register its receipt, or to "validate" the application, for another 10 days or so was simply the result of internal inertia within the LPA. If that had been the conclusion, then the Inspector would have been entitled to conclude (and indeed should have concluded) that the application was "received" in complete form at a much earlier date than the date of registration or "validation" of the application. However, having considered the material before him, the Inspector concluded that the LPA’s evidence satisfied him that the cheque was not received until 3 March. This was a finding of fact which could not be challenged.

Turning to the second issue, the Appellant challenged the Inspector’s approach to the deemed application under s.177. The Court of Appeal in Murrell had issued a timely reminder that in cases such as this it is important to recognise that, by virtue of the GPDO, the principle of development is already established. Whilst this is not quite the same as an outline planning permission, nevertheless, the two situations call for a broadly similar approach, and the analogy with outline planning permission has a real value in underlining the point that the assessment of siting, design and external appearance has to be made in a context where the principle of the development is not itself in issue.

The Inspector in the present case dismissed the appeals in two instances on grounds relating to the physical location of the kiosk, causing possible interruption to pedestrian flows, interruption of views, and the intrinsic appearance of the kiosk itself in the townscape, but he had also cited the display of advertisements as a significant reason for refusal in all seven appeals and had concluded that in every case the amount of advertising material on the kiosk intruded into its surroundings.

The Court decided that the Inspector in dealing with these appeals had in fact confined himself to issues of siting, design and external appearance without impinging on the principle of development. However, in relying on the visual effect of the display of advertisements on the kiosks, the Inspector had taken into account an immaterial consideration. The reason for this was that there is a separate and self-contained statutory code for the control of advertisements, which grants deemed consent for advertisements on telephone boxes. If an LPA wishes to prevent the display of such adverts it has the power to serve a discontinuance notice. In those circumstances, the Court did not consider that the existence of advertising material on a telephone kiosk which is otherwise sited appropriately in the planning context and has an intrinsically acceptable appearance is a material consideration in deciding whether prior approval should or should not be given to the erection of that kiosk.

The Court therefore quashed those five appeal decisions which depended solely on the display of advertisements as the reason for dismissing the appeals, but declined to quash the two appeal decisions where, although these were also rejected partly on this ground, the predominant reason was the siting of the kiosks.


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