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High Court Clarifies Permitted Development Rights for Telephone Boxes

Saira Kabir Sheikh QC
Mark Westmoreland Smith

On 5 February 2019, the High Court handed down an important judgment concerning the scope of permitted development rights for telephone boxes with advertising capabilities (Westminster CC v Secretary of State for Housing, Communities and Local Government & Ors [2019] EWHC 176 (Admin)). Ouseley J, allowing an appeal against the decision of an Inspector to grant prior approval for the replacement of two existing telephone boxes with a single new kiosk within the area of Westminster City Council, held that the proposed development fell outside Part 16 Class A of the General Permitted Development Order (“GDPO”).

In 2018, New World Payphones applied to Westminster City Council for a determination of whether prior approval for the replacement of two existing telephone boxes with a single new kiosk was necessary under Part 16 Class A.3(4) of the GDPO. At the same time, they applied for express consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 for the “display of an illuminated digital advertisement panel [...] as part of a new telephone kiosk.” The Council refused both applications. On appeal to the Secretary of State, an Inspector dismissed the appeal against the refusal of express consent but allowed the appeal against the refusal of prior approval. 

Westminster City Council challenged the Inspector’s conclusion on the matter of prior consent on two principal grounds:

a) that the new kiosk was not “for the purpose” of the operator’s electronic communication network and as such fell outwith the terms of Class 16, Part A of the GDPO;

b) that there was no “need” for the kiosk and as such it fell outwith the terms of Class 16, Part A of the GDPO.

In a detailed judgment which provides guidance on the interpretation of the GDPO, Ouseley J allowed the appeal on the first ground and accordingly quashed the Inspector’s decision.

Grappling with the first ground of appeal, Ouseley J noted that the effect of the GDPO was that “the whole of [a] development for which prior approval is sought must fall within the Class relied on, and no part of it can fall outside it” ([37]) — in other words, “a proposed development falls outside [the GDPO], if part of it falls outside it” ([39]). Given that the kiosk was partly for the purpose of advertising — and not wholly for the purpose of the operator’s network — it was held that it fell outside the terms of the GDPO. Accordingly, the Inspector erred in allowing the appeal against the refusal of prior approval and his decision was quashed ([48]).

The judgment is of wider significance for two reasons. Firstly, it clarifies the position with respect to the development of telephone boxes which include advertising capabilities; moving forward, such development should not benefit from permitted development rights, on the basis that it serves a dual purpose. This is significant not only for the telecommunications industry, but also for local planning authorities who have been grappling with an increase in applications of this type in recent years ([4]). Secondly, the judgment establishes that when considering purpose under Class 16 Part A of the GDPO, the assessment should not turn upon what the “primary” or “dominant” purpose is, but should instead mirror the approach to “dual” or “mixed” use under legislation in the planning context; this has potentially far-reaching implications for the interpretation of the GDPO in a range of other contexts ([40] – [42]).  Ouseley J granted leave to appeal.

Saira Kabir Sheikh QC acted for the successful Westminster City Council.

Mark Westmoreland-Smith acted for the Secretary of State for Housing, Communities and Local Government.