Dec 18
The operator of an electronic communications network applied to the local planning authority for a determination of whether its prior approval for the replacement of two existing telephone boxes with a single new kiosk was required under paragraph A.3(4) of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, as amended. At the same time it applied for express consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 for the “display of illuminated digital advertisement panel … as part of new telephone kiosk”. The authority refused both applications. On appeal to the Secretary of State, the appointed inspector dismissed the appeal against the refusal of express consent but allowed the appeal against the refusal of prior approval. The judge granted the authority’s application under section 288 of the Town and Country Planning Act 1990 for an order quashing the inspector’s decision on prior approval, on the ground that the new kiosk was not “for the purpose of the operator’s electronic communication network”, being partly for the operator’s network and partly for advertising, and as such fell outside Class A in Part 16 of Schedule 2 to the 2015 Order.
On the operator’s appeal—
Held, appeal dismissed. The proposed development, in the form of a telephone kiosk with an integrated illuminated advertisement display panel, comprised a structure, part of which (namely a public call box which, by virtue of paragraph A.2 of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015) was included within the definition of electronic communications apparatus) had the planning use or purpose of being part of an electronic communications network, and part of which (namely the electronic display panel) had the planning use or purpose of the display of advertisement. While a public call box was permitted development within Class A in Part 16 of Schedule 2 to the 2015 Order, the electronic display panel was not within any permitted class. The 2015 Order could not be used to obtain planning permission for a mixed planning use or dual purpose, because to allow it to be so used would allow permission to be obtained for development that was outside the scope of that permitted under the 2015 Order. Accordingly, the judge was right to conclude that the proposed development fell outside the scope of development permitted by Class A in Part 16 of Schedule 2 to the 2015 Order, and was right to quash the prior approval on that ground (paras 48–51, 55, 56, 57).
Paul Stinchcombe QC (instructed by Squire Patton Boggs (UK) llp) for the telephone network operator.
Saira Kabir Sheikh QC (instructed by Director of Law, Bi-Borough Legal Services) for the local planning authority.
The Secretary of State did not appear and was not represented.