Monday, 18 February 2019

Telephone kiosks - the scope of PD under Part 16

Many readers will have become aware of the recent High Court judgment in Westminster City Council v SSCHLG [2019] EWHC 176 (Admin), in which judgment was given by Ouseley J on 5 February. Most commentary on this case has focused on its effect in relation to the use of telephone kiosks for the display of advertising, but the case raises a wider issue relating to the scope of the development permitted by particular parts and classes in the Second Schedule to the GPDO, and the inter-relationship between this and the determination of a prior approval application in respect of such development.

The Westminster case was a challenge by the LPA to an appeal decision in which an inspector had granted prior approval for a telephone kiosk. The Secretary of State and the telecoms operator both sought to defend the Inspector’s decision.

The key to the issue that was before the court is the actual wording of Part 16 of the Second Schedule to the GPDO. This issue applies, in fact, to permitted development under other parts of the Second Schedule. Whether a particular development is permitted by the GPDO is a two-part question. First, the proposed development must qualify as permitted development under the criteria laid down in the particular Part and Class by which it is governed, and secondly (in many, but not all, cases) a prior approval application must be made, and is to be determined under the relevant criteria that apply to the prescribed application.

The development under consideration in the Westminster case was the erection of a telephone kiosk under Part 16, Class 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 [in this case] the installation, alteration or replacement of any electronic communications apparatus (viz. the proposed telephone kiosk). The relevant qualifying criterion in this case, therefore, is that the development is for the purpose of the operator’s electronic communications network.

In the Westminster case, the LPA attempted to argue that the developer must also demonstrate a “need” for the development. This was by analogy with the condition in Part 16 requiring the removal of the apparatus when it is no longer required. They also sought to rely on Paragraph 45 of the NPPF 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", although Paragraph 46 states 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. In the event, this “need” argument was not accepted by the court, and does not therefore require any further consideration.

The second stage (the prior approval application required under paragraph A.3(3)) enables the LPA to determine whether the prior approval of the authority will be required as to the siting and appearance of the development. In the Westminster case, the LPA did not seek to question the Inspector’s planning judgment as to the acceptability of the siting and design of the relevant kiosk.

The LPA’s fundamental objection was that the design and construction of the kiosk incorporated a substantial illuminated panel that was intended for the display of advertisements. The actual display of such advertisements would require advertisement control consent, but it was clear that the design (and arguably the purpose) of the kiosk included, and was perhaps primarily intended to facilitate, the display of advertisements, and in fact the size and design of the kiosk was significantly influenced by that requirement.

The LPA therefore argued, both before the Inspector and in the High Court, that the telephone kiosk was not "for the purpose" of the operator's electronic communications network, but instead was primarily for the purpose of advertising via the illuminated panel. The proposed kiosk was much larger than required to accommodate the proposed telephone; its size was dictated by the desire to provide advertising space.

In defending the Inspector’s decision, the Secretary of State submitted that the developer was an electronic communications operator, and its kiosks, with landline and internet access, were the reason it was an operator at all. The proposed kiosk was obviously "for the purpose of [its] network" within Class A GPDO. "Purpose" had the ordinary meaning of "the reason for which something is done" (as the LPA had themselves submitted). The Secretary of State also argued that the definition of Class A, merely required that the kiosk be "for the purpose of" the network; it contained no "dominant" or "primary" purpose test. The definition of class A did not include any requirement that the kiosk be "needed" or "required", and it should not be altered to "required for the network" or "required for the purpose of the network".

In the end, this case turned on this issue of “purpose” (but not of any requirement for “need”). As Ouseley J put it in his judgment, what the grant of permission for a Class of development subject to prior approval does is to limit the scope of the relevant issues remaining for decision. But the concept of the principle of a development being established, on that basis, means that the development which is being considered for permission under the GPDO must all fall within the Class in question otherwise its "principle" cannot be taken to have been established. A development therefore falls outside the scope of Class A Part 16 if 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. 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.

His Lordship did 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.

The essential point of this judgment, is that the question of whether a development proposed comes within the scope of and particular Part and Class in the Second Schedule to the GPDO, and can therefore go forward for consideration of prior approval, is not to be determined by the outcome of the prior approval process. It is to be determined first by reference to the essential qualifying criteria set out in the GPDO. The proposed development in the Westminster case was for the purpose of the operator's telecommunications network and for the purpose of advertising, because part of what was needed for the advertising role was performed by the structure and features of the telephone kiosk, to be dealt with under the electronic communications prior approval. The kiosk could not be brought within the scope of prior approval under Class A of Part 16 merely because it would be acceptable in the street scene. The kiosk would fall outside the scope of Class A if advertising consent were granted, since its dual purpose would be apparent daily. The judgement as to whether the kiosk, as applied for, came within the scope of Class A had to be made before siting and appearance were considered. It was for this reason that the Inspector’s appeal decision had to be quashed.

I would not seek to criticise this judgment, but it appears to me from the arguments put forward on behalf of the developer, and also the Secretary of State, that it would be possible to reach a different conclusion on the issue of “purpose” in relation to Part 16, Class A. I have no idea (at the time of writing) whether the developer has sought to take this case on to the Court of Appeal, but it would not be entirely surprising if they were to do so. This is not to say that the Court of Appeal would necessarily reach a different conclusion. It is entirely possible that the first instance decision would be upheld, but this does not appear to me to be ‘an open and shut’ case. However, in the absence of a successful appeal, Ouseley J’s judgment will clearly stand as binding judicial authority on the interpretation of “purpose” in Part 16 of the Second Schedule to the GPDO, until or unless the GPDO is amended.