PLANNING - TELECOMMUNICATIONS

PERMITTED DEVELOPMENT: RETROSPECTIVE PERMISSION: TELECOMMUNICATIONS MASTS: PRIOR APPROVAL PLANNING PERMISSION: PRIOR APPROVAL: ANTENNA: Sch.2 TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) ORDER 1995

Where a telecommunications mast was constructed before a "prior approval" application was made pursuant to the Town and Country Planning (General Permitted Development) Order 1995 Sch.2 then that development could not benefit from the permitted development rights contained in the Order but required retrospective planning permission.

The claimant (C) applied for judicial review of a decision of a planning inspector of the defendant secretary of state to dismiss its appeal against refusal of planning permission for a telecommunications mast. A local planning authority had refused to grant prior approval planning permission under the Town and Country Planning (General Permitted Development) Order 1995 Sch.2 Part 24 for a telecommunications mast that C had constructed. The planning inspector dismissing C's appeal to him held that upright booms used in the mast were apparatus and not antenna. The exclusion of the upright booms from being part of the antenna meant that the mast breached the exclusion, under the Order, on masts, save for antenna, exceeding 15 metres in height. He further held that as the mast was erected prior to C making an application pursuant to the Order the development could not benefit from permitted development rights contained in the Order. In the instant hearing two issues arose as to whether for the purposes of Part 24 of the Order (ii) the planning inspector had adopted too restrictive a definition of an "antenna"; (ii) the mast could not benefit from permitted development rights because it had been constructed before an application was made by C.

HELD: (1) The inspector had erred by adopting too restrictive an approach as to what constituted an antenna. It was not enough to ask whether a particular bit in question actually transmitted or received telecommunications signals. Many pieces of engineering contained component parts and it was possible to envisage an antenna that was split into different sections each fixed to a pole. It could be said that such a pole might contribute to the antenna by enabling it to be in a position to receive and propagate signals. As long as a piece was a part of an installation it was a question of fact and degree whether it was an antenna. (2) The permitted development rights contained in Part 24 were not available to regularise development which had been carried out other than in accordance with the requirements of the Order. Accordingly as the mast had been constructed before an application was made under the Order it attracted no rights under the Order but required retrospective planning permission.

Application refused.

AIRWAVE MMO2 LTD v FIRST SECRETARY OF STATE (2005) QBD (Admin) (Judge Gilbart QC) 30/6/2005

"Lawtel": 4.7.05