Orange Personal Communications Services Ltd & Ors, R (on the application of) v London Borough of Islington

Under a development order requiring a telecommunications developer to seek prior approval, planning permission crystallises when the developer receives the local planning authority’s favourable response. This applies whether the authority grants prior approval or determines that approval is unnecessary.

A later designation of the site as conservation-area land does not remove that accrued permission. This construction provides certainty, respects the developer’s commitment of resources and accords with the statutory scheme. In cases requiring no prior-approval procedure, the corresponding point of crystallisation is the commencement of the permitted works.

Telecommunications operators obtained a determination that prior approval was unnecessary for equipment at a telephone exchange. The installation departed from the submitted details. After the site became part of a conservation area, the local planning authority varied enforcement notices to require conformity with those details, but later withdrew the notices on the ground that the conservation-area designation had removed the permitted development rights.

Crane J quashed the withdrawal notices. The authority appealed from the Administrative Court. The central issue was whether permission under Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 had accrued upon the favourable prior-approval response and therefore survived the subsequent designation.

1. Appeal dismissed unanimously. In a case requiring a prior-approval application, planning permission under Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 accrues or crystallises when the developer receives a favourable response from the local planning authority. A determination that prior approval is unnecessary falls within the same rule as an actual grant of prior approval.
2. The development order had to be read as a whole. The general grant of permission for telecommunications development and the exclusion relating to Article 1(5) land had to operate coherently. Two possible extremes were rejected. Permission could not accrue universally when the order came into force, since that would deprive later conservation-area status of effect. Nor could permission remain defeasible until substantial completion, since developers would then begin work without knowing whether effective permission existed.
3. Where no prior approval is required, commencement of the works is the appropriate point at which the permission crystallises. It supplies a sufficiently certain dividing line after which a later conservation-area designation cannot make the completed or commenced development unlawful. This point was subsidiary to the issue on the appeal.
4. Where prior approval must be sought, the analogous event is the developer’s application followed by receipt of, and reliance upon, the authority’s favourable response. The developer must commit resources to preparing the required materials. The prior-approval process also fixes the site, details and period for the development. It closely parallels an ordinary grant of planning permission, which a later change in the land’s status cannot ordinarily undermine.
5. The transitional provision in the 2001 amending order supported that construction. The authority’s interpretation would have left the saving for existing prior-approval applications with no sensible work to perform. Section 61D of the Town and Country Planning Act 1990 did not require a contrary result. Its reference to completion was too fragile a basis for displacing the construction that best secured fairness, certainty and conformity with the planning scheme.
6. The decision in Watts [2002] EWHC Admin 993 concerned a different provision of the development order. Its reasoning could not usefully be transferred to the present issue. Crane J was therefore correct to quash the withdrawal notices.

1. Court of Appeal (Civil Division): The local planning authority’s appeal was dismissed unanimously. The Administrative Court’s order quashing the withdrawal notices was upheld: [2006] EWCA Civ 157.
2. High Court, Administrative Court: On 10 May 2005 Crane J quashed the authority’s notices withdrawing the varied enforcement notices. No citation for that decision is stated in the judgment.