Permitted Development (1) – payphone kiosks and advertisements

February 12, 2020

By Peter Dixon

Under Part 16 Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 development consisting of the installation, alteration or replacement of any electronic communications apparatus is permitted development, subject to a requirement for prior approval.

Paragraph 5 of Schedule 3A of the Communications Act 2003 (aka the electronic communications code) defines ‘electronic communications apparatus’ as including a structure, in turn including a building only if the sole purpose of the building is to enclose other electronic communications apparatus.

By virtue of the Town and Country Planning (Control of Advertisement) (England) Regulations 2007,  no advertisement may be displayed unless consent for its display has been granted either by way of deemed consent or express consent.  Under Regulation 6, an advertisement displayed on the glazed surface of a telephone kiosk has deemed consent subject to certain conditions and limitations.  One of the limitations is that “illumination is not permitted.”

In 2017 New Work Payphones Ltd (‘NWP’) applied to Westminster City Council for prior approval of a new telephone kiosk in replacement of two existing ones on Marylebone Road.  The new kiosk differed from its predecessors in having “multi-functional capability” incorporating, among other things, a small LCD display providing interactive wayfinding capability and a large LCD display for digital advertising purposes.  Because of the latter, NWP also applied for express advertisement consent.

In due course the Council refused both prior approval and advertisement consent, essentially on amenity grounds. NWP appealed against the decisions.  In the course of the appeal the Council raised a new reason for refusal, which was that the kiosk itself was not development within Part 16 Class A because it was not for the purpose of NWP’s network and was not required for those purposes.

The Inspector dismissed the Advertisement Consent appeal but allowed the Prior Approval appeal.  The Council issued proceedings under Section 288 of the Town and Country Planning Act 1990 challenging the decision on the grounds that the Inspector had erred in accepting jurisdiction to determine the Prior Approval appeal because the kiosk did not consist of development within Part 16.  At first instance, Ouseley J accepted the Council’s arguments and quashed the Prior Approval decision, finding that a development falls outside the scope of Class A Part 16 if it is not for the purpose of the operator’s network and that:

“…at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part falls outside it.”

He continued:

“I do not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose. Part of its purpose was for the operator’s network, as a telephone kiosk. Part of it was to be an electrified advertising panel. The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant.”

NWP appealed to the Court of Appeal (New Word Payphones Ltd v (1) Westminster City Council (2) The Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 2250) – there was also a cross appeal by the Council on a subsidiary issue.

The Court of Appeal agreed with Ouseley J and upheld his first instance decision, holding that whilst NWP’s subjective intentions in pursuing the development were irrelevant, on an application for prior approval the decision-maker was bound to consider and determine whether the proposed development falls within the definitional scope of the particular class of permitted development concerned.  To do so – at least in this case – it was necessary to consider whether the development was for a single purpose within the class or for a dual purpose, since Class A Part 16 only permits development for a single purpose.  That was not to import a subjective purpose, but merely to require the planning decision-maker to make an assessment of the purpose of the development, which is a usual planning function.  In this case the proposed development was for a dual purpose and therefore not within the scope of Class A Part 16.