Airwave MM02 Ltd v First Secretary of State & Ors

Under Part 24 of the Town and Country Planning (General Permitted Development) Order 1995, whether a component is an antenna or supporting apparatus is a matter of law and fact. The component must be assessed as part of the installation as a whole. It is insufficient to ask only whether it directly transmits or receives radio waves. Part 24 is a special, expedited code. Its procedural conditions must be followed before development begins. They do not provide a route for obtaining prior approval retrospectively after unauthorised development has been carried out. A claimant may still seek ordinary retrospective planning permission, but cannot rely on Part 24 in those circumstances.

The claimant challenged an Inspector’s dismissal of its appeal concerning a proposed telecommunications mast in Birmingham. The proposal was submitted under Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The Inspector concluded that parts of the antenna array were apparatus exceeding the 15-metre limit and that the mast had been erected before the prior-approval application, so the Part 24 procedure was unavailable.

The claimant argued that the relevant components were antennae and that the mast’s prior erection was irrelevant. The central issues were the proper interpretation of “antenna” and whether Part 24 could apply where development had already begun.

1. Antenna. The Inspector’s definition of an antenna as a passive electrical component transmitting or receiving radio waves was too restrictive. Engineering installations may contain component parts performing different functions which must be assessed together. The question is whether, as a matter of fact and degree, the component forms part of the antenna installation or forms part of the structure supporting it. The analysis must consider the component’s function, arrangement and contribution to transmission or reception, rather than merely whether it independently transmits or receives signals.
2. The Inspector also acted unfairly. His request for submissions appeared to concern the horizontal support boom, whereas his decision addressed the upright sections above 15 metres. The claimant had explained that those sections contributed to the required propagation pattern, but the Inspector failed to address that argument and did not clarify the apparent misunderstanding with the parties. His conclusions on the antenna issue were therefore legally erroneous and procedurally unfair.
3. Prior erection of the mast. Ordinary planning permission may be granted retrospectively under the statutory planning code. Part 24, however, is a special code which gives telecommunications operators a streamlined procedure while allowing the local planning authority to intervene before development takes place. The requirements in paragraphs A.3(3) and A.3(7) are conditions of that special regime. Where development has already begun, the Part 24 prior-approval procedure is unavailable and the ordinary planning-control provisions apply.
4. The principle illustrated by Simmons v Rochdale MBC [1990] 4 P & CR 432 supported treating the permitted-development order as a special code. The claimant succeeded on the antenna issue but failed on the retrospective-application issue, which was independently sufficient. The claim was dismissed, judgment was given for the defendant, and costs of £4,824 were awarded.

The matter arose from an appeal to the Planning Inspectorate against Birmingham City Council’s prior-approval decision. The Inspector dismissed the appeal on the basis that the apparatus exceeded the 15-metre limit and that the mast had been erected before the Part 24 application. The Administrative Court upheld the outcome and refused to quash the Inspector’s decision because the second ground was sufficient, although it rejected the Inspector’s reasoning on the antenna issue.