Dual Purpose

I need to declare an interest as I’ve recently been acting for an electronic communications code operator but…

Ouseley J’s ruling in Westminster City Council v Secretary of State & New World Payphones Limited (5 February 2019) raises more questions than some of the media headlines would suggest.

Background

New World Payphones is the operator of an electronic communications network for the purposes of the Communications Act 2003 and the Town and Country (General Permitted Development) (England) Order 2015.

It proposed replacing two existing telephone boxes with a single new kiosk on Marylebone Road. It had made two applications to Westminster City Council: an application under the GPDO for a determination as to whether its prior approval was required for the new kiosk and at the same time an application for express consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 for the “display of illuminated digital advertisement panel…as part of new telephone kiosk“. The panel was to be on the rear of the proposed kiosk.

Westminster City Council refused both applications. New World Payphones appealed. The inspector allowed the appeal against refusal of prior approval under the GPDO and refused the appeal against refusal of express consent under the Control of Advertisements Regulations.

Westminster City Council then challenged the decision to allow the prior approval appeal.

The legislation

In brief summary, Class A of Schedule 2 Part 16 of the GPDO gives deemed permission for:

“A. Development by or on behalf of an electronic communications code operator for the purpose of the operator’s electronic communications network in, on , over or under land controlled by that operator or in accordance with the electronic communications code consisting of –
(a) the installation, alteration or replacement of any electronic communications apparatus….”

If the apparatus comprises a public call box, a determination is required from the local planning authority as to whether prior approval is needed for the siting and appearance of the development.

It should also be noted that whilst an illuminated advertisement needs express consent under the Control of Advertisements Regulations, there is automatic deemed consent for a non-illuminated advertisement on one glazed surface of a telephone kiosk, subject to certain restrictions.

Westminster City Council’s submissions

Ouseley J summarised Westminster’s grounds of challenge as follows:

⁃ “the grant of prior approval was outside the powers conferred by the GPDO because the new kiosk was not “for the purpose” of the operator’s electronic communication network, but instead was primarily for the purpose of advertising via the illuminated panel.”

⁃ “the Inspector had ignored an issue which it raised, namely that there was no need for the proposed kiosk. There had to be a need for the proposal before it could come within the scope of permitted development in Class A of Part 16 of the GPDO, and before consideration of its siting and appearance could be relevant. Third, as a form of belt and braces, it contended that the Inspector’s approach to the need for and purpose behind the proposed kiosk was irrational or inadequately reasoned.”

Ground 1

The judge didn’t accept the council’s formulation that that the “provision of communications facility had to be the dominant or primary purpose in order for the development to come within the scope of Part 16” and that the “operator’s purpose was to be identified by the reason for which he proposed the development.” According to the council:

“A differently designed and smaller communications facility could be provided were it not for the advertising panel component of the design. This also showed what its dominant purpose was, as did New World Payphones’ statement in its written representations that a kiosk would only be replaced if both prior approval and advertisement consent were granted. The dominant purpose could not be the provision of the electronic communications facility if, in the absence of the advertising panel, the electronic communications facility would not be provided.”

The judge approached the issue in a different way, starting by considering the nature and purpose of the GPDO. “If there were no GPDO, a specific planning application would have to be made for all the developments which benefit from the general permission it gives. A whole array of different types of development, are regarded as fit for permission, subject to specific conditions. For some, and Part 16 Class A is one of them, the relevant material considerations are taken into account in the grant of the general permission, provided that certain specific material considerations are resolved through a specific decision-making process. Those specific considerations vary from one type of development to another. That restricted range of considerations is established because the others have already been resolved in favour of the type of development proposed. The restricted range is clearly tailored to the specific type of development at issue. However, the general range of considerations have not been resolved in relation to a development which does not come within the Class relied on, and the issues for specific consideration have not been tailored to such a development. The definition of the Class has to be interpreted in that light.

In my view, that means that the whole development for which prior approval is sought must fall within the Class relied on, and no part of it can fall outside it. Otherwise, the general permission in the GPDO, and the restricted range of considerations would be applied to development which falls outside the scope of the permission.”

“A development therefore falls outside the scope of Class A Part 16 if it is not “for the purpose” of the operator’s network. That means, at least in the specific context of a GPDO permission, that a proposed development falls outside it, if part of it falls outside it. It cannot be said that the whole falls within the GPDO. The benefits of the GPDO, a quicker process, the limited range of material considerations, and the restricted range of conditions would be used for a development, part of which they were not intended for, and which had not been judged to merit permission on that basis. A development which is partly “for the purpose” of the operator’s network, and partly for some other purpose, is not a development “for the purpose” of the operator’s network, precisely because it is for something else as well. The single dual purpose development must be judged as a whole.”

“I do not consider that the question is whether the dominant purpose is for the operator’s network, although for certain purposes that is how a statutory purpose is judged. In the context of planning law, the concept of dual or mixed uses does not turn on dominant or secondary purposes: thus a farm, when a farm shop was added, would be used for mixed purpose of agriculture and retail; similarly a house with an office use in a part of it, would not be “residential” but a mixed use. The other use would create a mixed or dual use unless it was incidental or ancillary to the identified use, which would mean that it was part of that use and not a separate use at all, or was legally so small as to be of no significance, de minimis. I consider that the GPDO should be analysed by reference to concepts with which planning law is familiar, rather than by dominant or primary /secondary considerations.”

“I do not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose. Part of its purpose was for the operator’s network, as a telephone kiosk. Part of it was to be the electrified advertising panel. The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant. It does not matter whether it would have been lit if no advertisements were displayed. No relative significance has to be attributed to either part of the dual purpose; it is sufficient if the two purposes exist without the advertising use being ancillary or incidental or of no legal significance.”

Ground 2

The judge rejected the council’s argument that it was relevant for a decision maker to consider whether there was a “need” for the kiosk.

“The text of Class A was intended to be quite simple, and would not have been intended to import some objective “need” test, or to involve the local authority questioning precisely why the operator “required” the kiosk, and judging how good a reason that was. This would contradict the essential feature of the GPDO which is to narrow the range of considerations which a decision-maker has to consider, in order to streamline certain aspects of the planning system.”

It’s not straight-forward

I say that for a few reasons:

1. The ruling was based on the facts of the case: a proposed illuminated/digital advertisement panel and two applications having been made, one being for the display of an illuminated advertisement. Plainly the ruling can’t read across to every telephone kiosk, even those that allow for a facility to display a non-illuminated advertisement with the benefit of deemed consent under the Control of Advertisement Regulations. After all, what purpose would the deemed consent mechanism (specifically directed at telephone kiosks) serve if any kiosk that allowed for such an advertisement, by definition, did not have prior approval under the GPDO? Kiosks such as the BT image below have long been a familiar part of the UK street scene for many years (ah London 2012…)

The idea that some advertising on the surface of telephone kiosks can be considered to be inherent or ancillary, and indeed specifically is controlled by a code within the Control of Advertising Regulations that has specific criteria as to what advertisements on telephone kiosks should have automatic consent and therefore legally irrelevant at prior approval stage, is surely reflected in previous rulings such as Infocus Public Networks Limited v Secretary of State (Foskett J, 17 December 2010) (a different Infocus case to that which is cited in Ouseley J’s judgment):

“As I have indicated, it is this part of the Inspector’s reasoning that I find difficult. If the primary issues for consideration, once the principle of this kind of development is acknowledged, are the siting and appearance of any kiosk, then “appearance” (though apt to include anything attached to the surface of the kiosk) would ordinarily be thought to be the intrinsic appearance of the kiosk itself. The fact that a telephone kiosk is something of a magnet for advertising material is obvious to anyone who walks along a street where telephone kiosks are situated. It has been recognised in a formal sense by the promulgation of the 2007 Regulations. Those Regulations give what would certainly seem to be a self-contained code for the regulation of advertising material generally and, in this particular context, of advertising materials attached to the surface of a telephone kiosk.

Against that background, it seems to me that a Local Planning Authority has ample powers to ensure the discontinuance of advertising that represents a “substantial injury to the amenity of the locality or a danger to members of the public”. There is a right of appeal for the owner or occupier of the site to the Secretary of State. To that extent and upon that basis, I do not consider that the existence of advertising material on a telephone kiosk that is otherwise sited appropriately in the planning context and has an intrinsically acceptable appearance is a material consideration in deciding whether prior approval should or should not have been given to the erection of that kiosk.”

2. Ouseley J rejects the dominant or primary purpose test proposed by the council, in favour of “concepts with which planning law is familiar” in the form of his “dual purpose” test which, as far as I’m concerned, is without any precedent. But then the test seems to come back in his statement that “it is sufficient if the two purposes exist without the advertising use being ancillary or incidental or of no legal significance“. Is this acknowledging the points in my paragraph 1 above?

3. To what extent is the motive of an operator relevant? Perhaps it is straight-forward in the New World Payphones type situation where the operator is making a specific application for the display of advertising alongside the application for the kiosk, but what about in other circumstances where motives can only be discerned from secondary evidence? And taking a step back, do we apply such considerations in relation to other industry business models that are dependent on advertising or sponsorship? Is the London Evening Standard a newspaper? Is Channel 4 News a news programme?

4. What are the implications for other parts of the GPDO? For instance, close to the pockets of local authorities, there is Part 12:

“A.  The erection or construction and the maintenance, improvement or other alteration by a local authority or by an urban development corporation of—

(a) any small ancillary building, works or equipment on land belonging to or maintained by them required for the purposes of any function exercised by them on that land otherwise than as statutory undertakers;

(b) lamp standards, information kiosks, passenger shelters, public shelters and seats, telephone boxes, fire alarms, public drinking fountains, horse troughs, refuse bins or baskets, barriers for the control of people waiting to enter public service vehicles, electric vehicle charging points and any associated infrastructure, and similar structures or works required in connection with the operation of any public service administered by them.”

So presumably one implication of the ruling, on the broad interpretation that some might give it, is that there no longer deemed permission for any bus shelter, refuse bin or seat that allows for advertising? If not, why not?

Permission to appeal

Ouseley J granted the Secretary of State permission to appeal, the test for which is that either (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard.

So his judgment is unlikely to be the last word on this subject.

MHCLG consultation paper

I covered MHCLG’s consultation paper Planning Reform: Supporting the high street and increasing the delivery of new homes in my 8 December 2018 blog post Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel?, at the time not saying much about the proposal to “remove the existing right that allows the installation of, and advertising on, new public call boxes“, because the proposed restriction seemed to me not to fit well with all of the other proposals, which are for extensions of permitted development rights, nor with the theme of supporting the high street and increasing the delivery of new homes.

It would be helpful if MHCLG were to reflect, with DCMS and Ofcom, on what comes from the Court of Appeal’s thinking when any appeal comes before it, before considering further, on the back of a specific consultation paper, whether any legislative change is in fact needed, and if so what. As I mentioned in my previous blog, in my view what is really needed is an updating of the permitted development rights in Part 16 of Schedule 2 to the GPDO to reflect the role of streetside furniture in relation to 3/4G (soon to be 5G and all that 5G will facilitate in terms of smart city functions) and wifi. The “public call box” terminology is certainly old fashioned and misleading. But, to use other old fashioned terminology, there is a big risk of throwing out the baby with the bath water.

Simon Ricketts, 16 February 2019

Personal views, et cetera

Dual porpoises