Council faulted over mast permitted rights decision

A south London borough was mistaken in concluding that rooftop telecommunications apparatus on a block of flats is permitted development, the Court of Appeal has confirmed.

The apparatus comprised nine antennae mounted 10.5 metres above ground level, each supported by a pole attached to a central pole held in place by steel legs. Because the supporting poles were not ground-based and their scale and design were not characteristic of a roof mast, the council determined that they did not comprise a "mast" within the terms of the General Permitted Development Order 2015 and so constituted permitted development under part 16, schedule 2.

In the High Court last year, Mrs Justice Lang ruled in support of a local resident who opposed the equipment’s siting close to a conservation area. She found that the order does not define what comprises a "mast" but noted submissions from the secretary of state that it should not be defined in an overly narrow way.

She rejected the operators’ claim that the poles were not masts by virtue of their smaller scale, fewer components and capacity to support only three antennae, compared with full-scale masts and towers capable of accommodating nine antennae. In this light, she ruled that the council’s interpretation had been incorrect and the structure was indeed a mast. This meant that it was not permitted under paragraph A.1(2)(c) of part 16 because it was located within 20 metres of a highway on a building less than 15 metres high.

In the Court of Appeal, Lord Justice Lindblom agreed that the term "mast" should be given its ordinary meaning and that, in a legislative context, it refers to a radio mast or radio tower. In his opinion, paragraph A.1(2)(c) placed the installation of upright poles or structures whose function is to support antennae or aerials on buildings less than 15 metres high outside the scope of permitted development rights. The council’s decision was flawed and had to be quashed, he concluded.

Mawbey v Lewisham London Brough Council

Date: 17 June 2019

Ref: [2019] EWCA Civ 1016

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