New World Payphones Ltd v Westminster City Council & Anor

A development benefits from a permitted development right only if the whole development falls within the relevant class and satisfies its exceptions, conditions and limitations. A mixed-use or dual-purpose development cannot generally qualify where a material part has a purpose outside that class.

The purpose of a proposed physical structure is assessed objectively. The developer’s subjective intention and the form or sequence of its applications are irrelevant. A prior approval authority must determine whether the development falls within the class before restricting its consideration to matters reserved for prior approval.

Separate advertisement controls and their deeming provisions cannot enlarge a permitted development class or confer permission upon the underlying structure.

The appellant proposed replacing two telephone boxes with a single kiosk incorporating electronic communications facilities and a large illuminated digital advertising panel. The council refused prior approval under the Town and Country Planning (General Permitted Development) (England) Order 2015 and refused advertisement consent. A planning inspector upheld the advertisement refusal but granted prior approval for the kiosk.

On the council’s application under section 288 of the Town and Country Planning Act 1990, Ouseley J held that the kiosk was a dual-purpose development which did not fall wholly within the permitted development class. He quashed the inspector’s decision in [2019] EWHC 176 (Admin). He rejected the council’s separate contention that the inspector had to consider whether the kiosk was needed.

The appellant challenged the ruling on dual purpose. The council cross-appealed on need. The central questions were whether the whole development fell within Part 16 Class A and whether need formed part of that class.

1. Both the appeal and the cross-appeal were dismissed. The order quashing the inspector’s grant of prior approval, and the council’s refusal of prior approval, remained in place.

2. A proposed development can benefit from the Town and Country Planning (General Permitted Development) (England) Order 2015 only where the whole development falls within a class in Schedule 2. It must satisfy the class definition and all applicable exceptions, conditions and limitations. Permitting a mixed-use development when a material part lies outside the class would use the order to authorise development which had not received permitted-development status.

3. The kiosk contained both electronic communications apparatus and an integrated illuminated advertising panel. The panel was neither incidental nor ancillary to the communications apparatus. It had the distinct planning purpose of displaying advertisements. The development was therefore dual purpose, and only part of it fell within Part 16 Class A.

4. The same conclusion followed from paragraph 5(3) of Schedule 3A to the Communications Act 2003. A building constituted electronic communications apparatus only if its sole purpose was to enclose other electronic communications apparatus. This kiosk also had an advertising purpose.

5. The relevant purpose was the objectively assessed use or purpose of the proposed physical structure. The developer’s subjective motive was irrelevant. Neither the terms of a prior approval application nor the sequence of applications could extend the statutory class. When dealing with prior approval, the authority was bound to determine whether the development otherwise fell within the class before limiting its consideration to siting and appearance.

6. The advertisement-control regime did not alter that conclusion. Subject to section 222 of the Town and Country Planning Act 1990, it regulated the display of advertisements rather than planning permission for the structures displaying them. Section 222 could not be used to extend a permitted development class or to obtain permission for the kiosk by attaching a deemed permission for an advertising structure.

7. Need formed no part of the detailed and comprehensive requirements of Part 16 Class A. It belonged to the principle of development already assumed by that class. A condition requiring removal when apparatus was no longer required did not import a threshold need test.

Asplin LJ and Lewison LJ agreed with Hickinbottom LJ.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 2250, dismissed both the developer’s appeal and the council’s cross-appeal, leaving the High Court’s order and the refusal of prior approval in place.

2. High Court, Planning Court: In [2019] EWHC 176 (Admin), Ouseley J allowed the council’s section 288 challenge on the ground that the dual-purpose development fell outside Part 16 Class A. He quashed the inspector’s prior approval decision but rejected the council’s argument that need was a relevant requirement.

3. Planning Inspector: Allowed the appeal against refusal of prior approval and granted approval for the kiosk, but dismissed the separate appeal against refusal of advertisement consent.