Infocus Public Networks Ltd v Secretary of State for Communities and Local Government & Ors

Under the prior-approval regime in Part 24 of the Town and Country Planning (General Permitted Development) Order 1995, the 56-day period begins only when a complete and valid application, including the required fee, has been received. Whether that has occurred is an objective question of fact and law. The court will not interfere with an inspector’s supported factual finding on an appeal limited to a point of law.

Where the principle of development is already permitted, the prior-approval inquiry is confined to the specified matters, here siting and appearance. Planning judgment remains for the inspector. Advertising on a telephone kiosk, however, is ordinarily regulated by the separate advertisement-control code and is not a material consideration in prior approval where the kiosk is appropriately sited and intrinsically acceptable in appearance.

The appellant challenged, under section 289(1) of the Town and Country Planning Act 1990, an inspector’s dismissal of appeals against enforcement notices concerning seven telephone kiosks installed in the City of London.

The dispute concerned whether the applications under Part 24 of the Town and Country Planning (General Permitted Development) Order 1995 were complete when submitted electronically, or only when the planning authority received the accompanying cheque. It also concerned the proper scope of the subsequent prior-approval assessment and whether advertising on the kiosks could justify refusal.

1. Validity and time limit. The required fee formed part of the material that had to accompany the application. A valid application was not received until the fee was received. The question was objective, and the authority’s administrative treatment or validation date was not determinative. The inspector was entitled, on the evidence, to find that the cheque was received on 3 March 2009. The 56-day period therefore had not expired when the authority issued its determination.
2. Deemed permission and planning judgment. The principles explained in Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367 applied. The court could not adopt a practical or prejudice-based approach contrary to the statutory scheme. Once a valid application was received, the inspector had to assess the specified prior-approval matters in the context that the principle of the development was already permitted. Local policies could be considered only so far as they bore on siting and appearance. The weight of legitimate planning considerations was for the inspector, subject to the ordinary public-law controls.
3. Advertising. The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 provided a separate regulatory code, including deemed consent for certain advertisements on telephone kiosks and discontinuance powers. Advertising material on a kiosk that was otherwise appropriately sited and intrinsically acceptable in appearance was therefore not a material consideration in deciding prior approval. The inspector’s reliance on the advertising material was the predominant reason for refusing appeals A, C, E, F and G, but siting independently justified refusal of appeals B and D.
4. The appeals were allowed in relation to appeals A, C, E, F and G and dismissed in relation to appeals B and D. The parties were invited to agree an appropriate order.

The judgment itself was a statutory appeal under section 289(1) of the Town and Country Planning Act 1990 from an inspector’s decision dismissing appeals against enforcement notices. The High Court allowed five appeals and dismissed two.