Mawbey, R (On the Application Of) v Lewisham Council

Permitted development rights under Part 16 of the Town and Country Planning (General Permitted Development) (England) Order 2015 must be interpreted broadly and in a common-sense manner. The term “mast” includes a building-based support pole for antennae which transmit and receive radio waves. The definition is not confined by characteristics such as ground-based construction, height, scale, design or directional coverage. Ancillary support structures under paragraph A.5 do not exclude primary support poles from the definition of electronic communications apparatus or mast. The statutory purpose requires a balanced interpretation which facilitates telecommunications infrastructure while protecting against adverse visual impact and public-safety risks.

The claimant sought judicial review of Lewisham Council’s decision that mobile telephone apparatus installed on the roof of Forsythia House was permitted development under Part 16 of the Town and Country Planning (General Permitted Development) (England) Order 2015. The installation was less than 15 metres high and within 20 metres of a highway.

The central issue was whether the central support poles carrying the antennae were “masts” within paragraph A.1(2)(c). If they were, the development was excluded from Class A permitted development.

1. Claim granted. The Council had wrongly concluded that the central support poles were not masts.
2. The GPDO should be construed according to the ordinary meaning of its language, adopting a broad or common-sense approach. External aids and statutory purpose were admissible because the term “mast” was ambiguous and the parties advanced conflicting interpretations.
3. Under paragraph 1 of Schedule 2 to the Telecommunications Act 1984, the antennae were apparatus, the cables were lines, and the central support poles were poles on, by or from which electronic communications apparatus was installed, supported, carried or suspended. They therefore formed part of the electronic communications apparatus.
4. The GPDO defined “mast” as “a radio mast or radio tower”. That definition had to be interpreted broadly. Each support pole was a radio mast because it supported antennae which transmitted and received radio waves. The GPDO imposed no requirement that a mast be ground-based, of a particular height or scale, of a particular design, or capable of providing 360-degree coverage.
5. Paragraph A.5(b), concerning mountings, fixings, brackets and other support structures, clarified the treatment of ancillary items. It did not exclude primary support poles, which were already covered as “poles” within the statutory definition of electronic communications apparatus. Nor did the provisions concerning other apparatus supporting an antenna assist the Council.
6. The industry Code of Best Practice was not a statutory code and was not incorporated into the GPDO. Its glossary could not narrow the statutory meaning of “mast”. The Secretary of State’s interpretation was relevant but not conclusive; the court retained responsibility for interpreting the legislation.
7. The purpose of Class A was to facilitate telecommunications infrastructure while preserving restrictions addressing visual impact and public safety. Treating pole mounts as outside the exclusion, while accepting that materially similar stub masts were masts, produced an illogical result inconsistent with that purpose.

The Council’s decision was irrational insofar as it treated the support poles as non-masts because they were not ground-based and their scale and design were not characteristic of a roof mast.