Friday, 20 December 2019

CA upholds judgment on the qualifying ‘purpose’ of PD under the GPDO

Earlier this year, on 18 February, I drew attention to Westminster City Council v SSCHLG [2019] EWHC 176 (Admin), in which judgment had been given by Ouseley J on 5 February. This case has now reached the Court of Appeal (New World Pay Phones Ltd v Westminster City Council [2019] EWCA Civ 2250). On 18 December, the Court of Appeal unanimously upheld the judgment at first instance.

You might suppose that, with the almost universal use nowadays of mobile phones, the demand for public call boxes would be greatly reduced, and yet prior approval applications to install new or replacement telephone kiosks have burgeoned over the last few years. The key to this is that these applications are nearly always accompanied by a parallel application for advertisement consent to allow illuminated advertising on the whole of the back panel of the new kiosk. This, Westminster suggested, betrayed the true purpose of these proposed structures. The Council thought it unlikely that the new kiosks would be used by the public to make telephone calls; and the applications were in substance an attempt to exploit PD rights so as to circumvent normal planning controls that properly apply to such development.

Following February’s judgment, MHCLG moved with unaccustomed alacrity to plug this loophole. With effect from 25 May 2019, the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 removed from the PD rights granted by Part 16 of the Second Schedule to the GPDO development consisting of the installation, alteration or replacement of a public call box, and for good measure the Advertisement Control Regs were also amended to exclude from Schedule 3 of those regs deemed consent for [unilluminated] advertisements displayed on the glazed surface of a telephone kiosk.

[In light of this, you may be wondering why New World Pay Phones bothered to take their case on to the Court of Appeal. The answer lies in the transitional provisions in the May 2019 amendment regulations. Where a prior approval event occurred before 25 May 2019, the PD right under Part 16, Class A continues to have effect in relation to a public call box as if the amendments made by these Regulations had not been made. So if New World Pay Phones could get the High Court judgement overturned, the Inspector’s original appeal decision would thereby have been restored. It was that appeal decision that was the “prior approval event” in this case, and so the permitted development could still have gone ahead.]

As I pointed out in February, the significance of this case is not confined to telecoms developments under Part 16. The “purpose” of the proposed development is what really matters, and whether or not this actual purpose falls within the qualifying purpose or purposes specified by the relevant Class in the appropriate part of Schedule 2 to the GPDO. As I noted in February, it seemed 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. This was not to say that the Court of Appeal would necessarily reach a different conclusion, and it seemed to me that it was entirely possible that the first instance decision would be upheld, but the case would clearly turn on the interpretation of “purpose” in the context of the Second Schedule to the GPDO.

As Hickinbottom LJ put it in his judgment, the “use” of a building or land is 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 75(2) and (3) of the 1990 Act, where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and, if no purpose is specified, then the permission is construed as including permission to use the building for the purpose for which it is designed. “Purpose” in this context is not subjective – it does not depend upon what is in the mind of the developer – it is the use for which the development, looked at objectively, is intended.

As Ouseley J observed in his judgment at first instance, “A development 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. …….. 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 dual purpose development must be judged as a whole.”

The essential points to be derived from the judgment of Hickinbottom LJ in the Court of Appeal may be briefly summarised as follows:

(1) To fall within a specified class of PD, 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.

(2) 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.

(3) 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 “exceptions, conditions and limitations”; and therefore a mixed use or dual purpose development, where one use or purpose is outside the scope of the class, cannot generally be permitted development.

It was beyond dispute that the proposed telephone kiosk in this case did not have merely the single purpose to enclose electronic communications apparatus, but that it also had an advertising purpose. It therefore very clearly fell outside the scope of the GPDO. For those reasons, in Hickinbottom LJ’s 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.


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