Westminster City Council vSecretary of State for Housing Communities And Local Government

Under Part 16 Class A of the Town and Country Planning (General Permitted Development) (England) (Order) 2015, the whole development proposed under a prior-approval application must fall within the relevant permitted-development class. A development with both telecommunications and a substantial advertising purpose is a mixed-purpose development and does not fall within Class A merely because the telecommunications element is genuine. The question is determined when the application is made, not by the outcome of a separate advertising-consent application. A general public-interest question about the need for electronic communications networks or kiosks is excluded by the GPDO’s grant of permission in principle. The removal condition does not introduce an objective need test.

New World Payphones Ltd applied to replace two telephone boxes with a single kiosk outside Marylebone Road. The kiosk included telephone and other communications facilities together with an illuminated digital advertising panel. The local planning authority refused prior approval, but an Inspector allowed the appeal under Part 16 Class A of the GPDO. Separate advertising consent was refused, and that decision was not challenged.

The authority brought a claim under section 288 of the Town and Country Planning Act 1990. It argued that the kiosk was not development for the purpose of the operator’s electronic communications network because it also served advertising, and that the Inspector had failed to address the need for the particular kiosk. The central questions were the meaning of purpose under Class A and whether the GPDO permitted consideration of need.

1. Purpose and scope of Class A. The claim was allowed because the application fell outside Part 16 Class A. The GPDO grants permission for defined classes of development while reserving only specified matters for prior approval. That restricted process cannot be used for development which falls partly outside the relevant class.
2. The whole development for which prior approval is sought must fall within Class A. A development which is partly for the operator’s electronic communications network and partly for another substantial purpose is not development for the purpose of that network. The approach in Keenan v Woking BC and SSCLG [2017] EWCA Civ 438, requiring development to fall fully or squarely within the applicable class, supported that conclusion.
3. The applicable test was not whether telecommunications was the dominant or primary purpose. Planning law recognises mixed or dual uses. A different use is separate unless it is merely ancillary, incidental or legally insignificant. The advertising panel was a substantial part of the proposed kiosk and was not ancillary or de minimis.
4. The separate consent regimes did not alter the analysis. Whether the kiosk came within Class A had to be decided on the application as made, before consideration of siting and appearance. The refusal of advertising consent could not convert an otherwise mixed-purpose proposal into Class A development.
5. Need. The GPDO’s general permission resolved the public-interest need for electronic communications networks and facilities. It therefore excluded a separate argument that the particular kiosk was unnecessary because existing kiosks were little used or other operators already provided facilities. The removal condition, requiring apparatus to be removed when no longer required for electronic communications purposes, did not introduce an objective need test. The reasoning in Murrell v SSCLG [2010] EWCA Civ 1367 and Infocus Public Networks Ltd v SSCLG [2013] EWHC 4622 (Admin) was considered in relation to development being approved in principle.
6. The reliance on paragraph 45 of the NPPF did not change the statutory position. Class A made no relevant reference to the NPPF, and need was legally immaterial except insofar as a matter might bear on siting or appearance. The prior-approval decision was quashed.