Lifford Gardens and the Sands Residents’ Association Ltd, R (on the application of) v Wychavon District Council

An operator installing electronic communications apparatus must consult the local planning authority under regulation 3(1)(b) of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003. Consultation must address visual amenity, heritage effects, traffic and the conditions applicable to the particular development. It is not necessarily invalid because it overlaps with, or continues after, a regulation 5 notification.

Where planning permission is granted by the Town and Country Planning (General Permitted Development) Order 2015 without prior approval, the local planning authority has no separate obligation to determine compliance with the conditions before the development proceeds. The operator must comply with those conditions, while the authority retains enforcement powers. The authority may not require underground cabling merely because it would reduce visual impact.

The claimant sought judicial review of Wychavon District Council’s decision that FullFibre Ltd’s proposed telegraph poles and cabling in Broadway fell within Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015. The development was subject to regulation 5 notification under the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 and affected land within the Cotswold Area of Outstanding Natural Beauty.

The claimant argued that consultation was required, that the Council had to determine compliance with GPDO conditions A.2(1)(c) and (d), that the Council could require underground cabling, and that its reasons were inadequate. Permission was also sought to add late consultation and reasons grounds.

1. Consultation. Regulation 3(1)(b) of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 imposes a duty on the operator to consult the local planning authority. Read with regulation 3(3), consultation concerns visual amenity, heritage effects, hazards and traffic, and must also address the location-specific conditions applicable under Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015. Its legal adequacy is fact-sensitive. Consultation before and after notification may together satisfy the duty.
2. The pre-notification meetings, correspondence, engagement with residents and elected representatives, surveys and iterative design amounted to lawful consultation. The post-notification exchange of information strengthened, but was not essential to, that conclusion. Ground 3 therefore failed.
3. Notification and conditions. The Council was entitled to consider the relevant GPDO conditions, but the statutory scheme did not require it to make a formal determination of compliance when receiving a regulation 5 notification. The GPDO granted permission subject to conditions without a prior approval process. The Council’s role was limited to dialogue, engagement and, where appropriate, the imposition of reasonable conditions under regulation 5(3). Enforcement remained available if the operator breached the GPDO or its regulatory obligations.
4. The Council had in fact considered practicability, available underground infrastructure, visual impact, the AONB, sharing opportunities and relevant guidance. Its conclusion that the proposed apparatus was justified was rationally open to it. The conditions did not confer power to require underground installation.
5. Reasons and applications. Although no statutory duty to give reasons existed, reasons voluntarily given had to be legally adequate. The Council’s letter explained why it accepted that poles were required and why the proposal fell within the permitted development right. The reasons were adequate. Permission was granted to add Ground 3 but the claim failed. Permission to add the late reasons grounds was refused. The claim was dismissed.

This was a first-instance judicial review in the High Court (Administrative Court). The judgment records that permission was initially refused on the papers, then granted on renewed grounds 1a and 2a, with ground 3 initially rejected as unarguable. Permission was later granted to add ground 3, but the claim failed on its merits.