O2(UK) Ltd v Secretary of State for Communities & Local Government

Where permitted development rights depend on a volume threshold, the relevant question is the volume of the housing comprising the particular development, rather than necessarily each cabinet considered in isolation. Whether apparently related installations constitute one development or separate developments is a question requiring proper consideration of the evidence.

An inspector errs in law by treating installations as one development without allowing submissions on that issue where the point was not raised by the planning authority and became apparent only during a site visit. The decision should be quashed or remitted for reconsideration. Costs should reflect both the issues won and lost.

The claimant challenged an inspector’s decision upholding an enforcement notice concerning telecommunications equipment installed on a building in Islington. The claimant relied on permitted development rights under Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995.

The central dispute was whether the 2G and 3G equipment constituted one development, so that the combined volume of the equipment housing exceeded 2.5 cubic metres and triggered the prior approval procedure under paragraph A.2(4)(b). The inspector treated the installations as one development after measurements were taken at a site visit, without inviting substantive submissions on that issue.

1. Construction of the GPDO. Paragraph A.2(4)(b) applies to the particular development and to the total volume of radio equipment housing required for that development. It does not necessarily apply separately to each individual cabinet. This construction accords with the natural meaning and purpose of the provision, namely to prevent a specified volume of development without consideration by the planning authority.
2. Separate developments. The 2G and 3G installations had been notified separately and were capable, on the evidence, of being regarded as separate developments. The fact that they were installed at the same time and shared some physical features did not determine the issue. An artificial division intended solely to avoid the statutory control might raise a different question, but that issue did not arise for decision.
3. Procedural error. The inspector was wrong in law to decide that the equipment constituted a single development without enabling the claimant to make submissions. The cumulative approach had not been advanced by the Council and became apparent only during the site visit. The claimant therefore had no fair opportunity to address whether the 2G and 3G systems were separate developments. The inspector’s decision could not stand.
4. The matter was remitted to the Secretary of State for redetermination on the evidence concerning whether the installations were, or should be regarded as, separate developments. That did not determine the ultimate merits. The claimant succeeded on the procedural ground but failed on its primary construction argument.
5. Under rule 44.3 of the Civil Procedure Rules 1998, the claimant was awarded two-thirds of its costs, subject to detailed assessment if not agreed.

This was a first-instance claim under section 289 of the Town and Country Planning Act 1990 challenging an inspector’s decision upholding an enforcement notice. The claim was remitted to the Secretary of State for redetermination.