Permitted rights ruled out for dual-purpose kiosk

A telephone kiosk in central London is not permitted development because it also serves as a means to display advertisements, the High Court has concluded.

The developer had applied to the council under class A, part 16, schedule 2 of the GPDO 2015 for a determination as to whether prior approval was required for the appearance of the new kiosk, which was planned to replace two existing telephone boxes. The council refused the scheme. On appeal, an inspector granted permission, concluding that there was no requirement for the company to prove a need for the development and that any advertisement displayed on the structure would require a separate consent under the advertisement regulations.

The council challenged the inspector’s decision, arguing that the grant of prior approval under the GPDO is confined to siting and appearance and that, in considering this matter, the kiosk must be designed for the purposes of a communications facility. It pointed out that the kiosk design allowed for the display of advertisements and that the appellants had confirmed to the inspector that it would only be built if prior approval and advertisement consent were both granted. On this basis, it argued, the kiosk served a dual purpose, which meant that it could not fall within the scope of part 16.

Mr Justice Ouseley took the purpose of the GPDO as his starting point. It is necessary, he held, for any development proposed under the order to fall entirely within the class concerned and, in the case of class A, a scheme has to be for "the purpose" of the operator’s network. If part of the scheme falls outside this remit, he reasoned, it cannot be permitted under that class.

In his view, the kiosk clearly served a dual purpose, since it was designed to include an electrified panel for the purpose of displaying advertisements. This was neither ancillary or incidental to the kiosk nor legally insignificant, he decided. The fact that a separate consent for the advertisement was required did not affect how the scheme was to be assessed under class A, he held. The inspector’s decision had not dealt with features that clearly had nothing to do with the company’s provision of communication equipment, he remarked.

In quashing the inspector’s decision, the judge rejected the council’s further claim that the need for the kiosk was a relevant consideration. The NPPF may refer to "necessary evidence" to justify development, including prior approval applications, he noted, but it cannot alter the law. It does not override the matters that can be considered – namely siting and appearance – specified in the wording of class A, he held.

Westminster City Council v Secretary of State for Housing, Communities and Local Government and New World Payphones Ltd

Date: 5 February 2019

Ref: [2019] EWHC 176 (Admin)

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