The High Court has held that telecommunications apparatus installed was a “mast” within the definition of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) and the apparatus therefore did not benefit from permitted development rights (PD rights) enabling it to be erected without prior consultation.
In turn, the local planning authority (the LPA) had acted irrationally in its interpretation of the GPDO and its refusal to take planning enforcement action against the installation. This case may mean that similar existing or proposed apparatus may not benefit from PD rights, could be subject to planning enforcement action and may require express planning permission. The judgment is available here.
Under Part 16 of Schedule 2 to the GPDO, certain PD rights are granted to electronic communications code operators. These PD rights exist to facilitate the installation of telecommunications infrastructure without the delay and uncertainty of a separate planning application.
The PD rights include development by or on behalf of such an 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 the installation, alteration or replacement of any electronic communications apparatus.
However, there is an exclusion under the GPDO which provides that telecommunications apparatus is not permitted development if it includes “the installation, alteration or replacement of a mast on a building which is less than 15 metres in height, the mast would be within 20 metres of the highway”.
In this case, the apparatus in question comprised nine antennae, installed in groups on the four corners of the roof of a building. The antennae were not free-standing, and each was supported by an antenna pole and attached by a yoke arm to a central support pole. That central support pole was held in place by steel legs, forming a tripod, bolted to a concrete cast plinth, and moulded and set into the concrete slab of the roof. There were four central support poles, each holding one, two or three antennae. It was common ground that the installation was less than 15 metres in height and within 20 metres of the highway.
The issue was therefore whether the central support poles, which supported the antennae, were considered to be a “mast” as referred to in the GPDO exclusion, or whether they were pole mounts, which were different in nature to a mast and would not fall within the GPDO exclusion.
The claimant, a local resident, contended that the central support poles should be interpreted as being part of a mast. The claimant therefore requested that the LPA take planning enforcement action against the operator, on the basis that PD rights were not available and the operator had installed the apparatus without consultation. The Secretary of State for Communities and Local Government was joined to the claim as an interested party and supported the claimant's interpretation.
The LPA had refused to take planning enforcement action against the operator. Both the LPA and the operator argued that the support poles were not “masts” within the GPDO exclusion as they were not ground based and their scale and design was not characteristic of a typical roof mast.
The High Court agreed with the claimant’s interpretation, and held that the support poles were part of a mast for the purposes of the GPDO. The High Court held that the term mast was a broad one and that each central support pole was a radio mast within the ordinary definition of the word mast.
There may be situations where similar apparatus is installed, or already exists, which may be subject to similar issues and local oppostion. Similarly, this could provide a basis for LPA’s to take planning enforcement action against such apparatus.
In this case, local residents were concerned that they were not consulted about the installation of the mast (as there is no requirement to consult when relying on the PD rights). The residents also had concerns about its visual impact and potential health implications. These concerns are not unique.
Ultimately, the remedy may be to obtain planning permission as opposed to relying on PD rights. However, this is an inherently more timely and costly process than the reliance on PD rights and it affords the opportunity for objection by third parties. In cases such as this, where the LPA had taken the view that the masts were permitted development, then this may not represent a risk as the LPA may still grant planning permission. However, where LPA’s are less supportive this may cause delays in the delivery of apparatus.
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