Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
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Appellate history
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.
Key cases cited
14 authorities cited.
- South Bucks District Council and another (Respondents) v. Porter (FC) (Appellant) [2004] UKHL 33
- Save Stonehenge World Heritage Site Limited, R (on the application of) v Secretary of State for Transport & Ors [2024] EWCA Civ 1227
- CG Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWCA Civ 730
- Barton Park Estates Ltd. v The Secretary of State for Housing, Communities and Local Government & Anor. [2022] EWCA Civ 833
- New World Payphones Ltd v Westminster City Council & Anor [2019] EWCA Civ 2250
- Mawbey, R (On the Application Of) & Orsv Cornerstone Telecommunications Infrastructure Ltd. [2019] EWCA Civ 1016
- Talpada, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 841
- Kigen & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 1286
- R v North and East Devon Health Authority, Ex p Coughlan [1999] EWCA Civ 1871
- Aysen Dennis, R (on the application of) v London Borough of Southwark [2024] EWHC 57 (Admin)
- R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin)
- I'm Your Man Ltd v Secretary of State for the Environment [1999] 77 P & CR 251
- R v Criminal Injuries Compensation Board, ex p Moore [1999] 2 All ER 90
- Whitley & Sons v Secretary of State for Wales (1992) 64 P & CR 296
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