Planning for Telecommunications

ECS Limited – May 2004

Planning for telecommunications

An overview of the different levels of planning relating to telecommunications (England and Wales)

Planning Officers often find the legislation and guidance in respect of telecommunications installations is confusing. They are not alone! The mobile phone operators and their agents also struggle from time to time in interpreting the legislation and guidance.

There are three significant sources of information to refer to:

The first is Part 24 Town and Country Planning (General Permitted Development)(Amendment)(England) Order 2001. This is the primary document to refer to in the event of a dispute. Unfortunately, like many Acts, its interpretation is, at best, complicated and at worst open to more than one interpretation in places. It is for this reason that occasionally the High Court may be called in to give an authoritative interpretation of the Act. Unlike the decisions of Planning Inspectors, High Court judgements are definitive.

The second source of information (and probably the most common one used by Planning Officers) is the Planning Guidance. In England, the key document is Planning Policy Guidance Note 8 Telecommunications. This is usually referred to as PPG8. Planning Guidance seeks to provide a working interpretation of the Act and, as such, goes beyond the Act in establishing the Governments intentions. In the case of telecommunications, there are a great many things in PPG8 that are not mentioned in the Act itself. Thus we need to understand how much weight to attach to PPG8. In reality PPG8 stands only just below the Act and Planning Inspectors will place great weight on its advice and wording. High Court judges will use PPG8 to help them to understand the Act.

Finally, there is one more useful source of information. This is the Code of Best Practice on Mobile Phone Network Development that is issued by the Office of the Deputy Prime Minister (ODPM). This document provides much useful background to the subject of masts and sets out a suggested method for submitting and dealing with applications. Little weight can be attached to the Code but it is nevertheless useful and the conduct of operators (and Councils!) can be compared against this “Best Practice” model.

De Minimis[1]

The smallest telecommunications developments are sometimes De Minimis. This means that they are so small as to no warrant a planning application of any sort, or alternatively they look like something that is widely accepted such as a television aerial. Of course in a Conservation area or an area with some other protective designation, what is De Minimis might well be different from what might be acceptable in an industrial estate or even a residential area without special designation. Examples of telecommunications installations that are often considered to fall into this category are aerials that look like alarm bell boxes, aerials hidden in garage signs and other small disguised installations – examples of these types of design can be found in the Code of Best Practice. There is no formal notification required for this sort of installation and they are often unnoticed by the general public.

Permitted Development not requiring Prior Approval[2]

This is perhaps the designation that is most difficult to decide upon. The Guidance indicates that antennas below 4m in height on a building and equipment cabinets with less volume that 2.5m3 would fall into this category. It is not that simple though.

PPG8 says that the operator should submit a licence notification at least 28 days before the development starts but does not say what form this should take. The Code of Best Practice suggests that Licence Notifications are no longer required[3]. In practice, most operators do advise the Local Authority but the level of information submitted is very variable. In the past operators have attempted to interpret this provision as liberally as possible and have tried to include quite large structures within this definition. The main problem lies in the lack of a legally accepted definition of an aerial or antenna. Even the definition of the cabinet volume has been questioned by some Authorities – should air-conditioning cowls be included for example?

We would always advise Local Authorities to seek proper drawings for proposed installations being submitted under this part of the Act. Note that while there is no “refusal” method available, one can certainly respond to the effect that a particular design should be PD requiring Prior Approval or Planning Permission if you can justify such a course of action.

Permitted Development requiring Prior Approval[4]

The definitions here are complicated. Basically, a freestanding mast up to 15 metres in height or a mast of up to 15 metres in height on a building, or an antenna that exceeds the height of a building by more than 4m may be PD requiring Prior Approval[5]. There are various qualifications however including one related to the distance of the installation from the highway and how many other antenna systems there are on a building[6]. While some of the qualifications are easily interpreted, some may well require expert help. One such qualification is that the aerials may extend above 15 metres and here the definition of what is an aerial or not may be critical (most masts are topped by a lightening conductor finial for example).

A submission by an operator is “not a notification or an application” according to PPG8. The Local Authority has 56 days to decide if Prior Approval is required and then to issue a decision. These two things are separate and should really be done at different stages of the process.

A key point is that the decision (does not require prior approval or requires prior approval permission given or requires prior approval permission refused) must reach the operator within the 56 day period. If you intend refusing permission and miss this timescale the operator will have a deemed consent and you could be subject to maladministration proceedings[7]. Various Authorities have considered discontinuance and enforcement proceedings in such cases but these mechanisms are seldom effective.

Planning Permission[8]

The main difference between an application for Planning Permission and one for PD requiring Prior Approval is that there is no enforceable statutory decision period beyond which the operator gains a deemed consent. The operator’s Permitted Development rights do not apply in some areas (e.g. Article 1 (5) land such as conservation areas, National Parks, AONBs etc.).

© ECS Ltd 2004 Page 1 Tel. 01625-425700

[1] PPG8 Appendix – Supporting Guidance paragraph 43

Code of Best Practice p32-33 paragraphs 146 and 147

[2] PPG8 Appendix – Supporting Guidance paragraph 44

PPG8 Annex 1 paragraph 26

Code of Best Practice p15 paragraphs 66-68

[3] Code of Best Practice paragraph 68

[4] PPG8 Annex 1 paragraph 3-7

PPG8 Appendix – Supporting Guidance paragraphs 4-7

[5] PPG8 Annex 1 paragraph 4 is helpful.

[6] Part 4 A.1(g)(i) and A.1(g)(iii)

[7] Code of Best Practice paragraph 103.

[8] PPG8 Appendix – Supporting Guidance paragraph 52 and 53.