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This briefing is intended to deal with the growing problem of the installation of small antenna also described as de minimis. This area of concern can be split into two distinct groups, those that are small antenna as set out in Part 24 A.4 of the Town and Country Planning (General Permitted Development) (Amendment) Order 2001 (GPDO). And those that are truly de minimis, this is a very complex question, but can be pointed to as not being development within the meaning set out in Section 55 of the Town and Country Planning Act 1990, and which does not materially affect the external appearance of the building, or structure. The term being set out for clarity in Burroughs Day v Bristol City Council (1996) 19 EG 126.

There is also a mountain of small pieces of equipment, such as cables, lightning conductors, that are counted within this general remit, and therefore should be discounted in any objections, as complaints will not count towards rejection of the installation.

An additional aspect that could not in any way be seen as de minimis is being treated in a similar manner by phone operators and a large number of local authorities. That is the ambiguous wording of Part 24 A.2(4)(b) of the GPDO. Which at face value appears to state that where an installation on a building or structure does not exceed the height of the building or structure by 4 metres then no local planning authority permission is required, and that the development should be treated as a licence notification (see A2.(4)(b) briefing). Whilst in our arguments we reject these as being genuine de minimis unfortunately we are being forced to accept defeat at local level, but we continue to fight a rear guard action on the topic at national level.

DE MINIMIS
In legal terms the literal meaning of the full expression de minimis no curat lex is "The law takes no account of very trifling matters". The courts will not, for example, award damages for a trifling nuisance. Our arguments lies in the power of the antenna rather than the physical size, many of which are equal in power and therefore in terms of potential ill-health they are in the same category as full sixed installations. That being so we should not accept minor installations as trifling matters.

So what installations come within the term de minimis. First we look to GPDO Part 24 A.4 which sets out the physical description of a small antenna. It must be stated here that for antenna falling within that category then NO local planning authority permission is required, although the operator still has to inform the local planning authority through the annual pre-rollout notification and consultation (para 8 of Planning Policy Guidance Note 8 (PPG8)).

With de minimis we start with Section 55 of the Town and Country Planning Act 1990, this section is headed 'Meaning of Development', and sets out what the definition of development is, therefore anything that does not fall within its remit is not development. We are primarily interested in the words of sub section (2)(a)

1. the carrying out for the maintenance, improvement or other alteration of any building of works which-

1. affect only the interior of the building, or
2. do not materially affect the external appearance of the building,

The definition taken from the Burroughs Day case of de minimis is.

1. What had to be affected was the 'external appearance of the building, not the "exterior" of the building'. The use of the word 'appearance' meant that it was not sufficient for the external surface of the building to be effected by the proposed alteration. The alteration had to be one which affected the way in which the exterior of the building could be seen by an observer outside the building;
2. The external appearance of the building had to be 'materially' affected. That effect must be more than de minimis;
3. Whether the effect of the alteration was 'material' must depend in part on the degree of visibility; and
4. The effect on the external appearance must be judged for its materiality in relation to the building as a whole and not by reference to a part of the building taken in isolation.

So what is the reality of all of this to telecommunication installations (this is a far better term than phone mast, as not all installations are rightly phone masts, especially within this topic, which can see antenna disguised as normal building furniture such as burglar alarms, lamp posts, the cross on Guildford Cathedral.......). First perhaps a few examples of the potential use, all of which are known to have happened.

• Additional dishes and antenna added to base station.
• Adding of larger head gear (frame for holding antenna and dishes), larger dishes and larger antenna (not all on the same mast).
• Installing larger equipment cabins
• Installation of small antenna and dishes disguised as normal building and street furniture, such as street lights and burglar alarms.
• Installation inside buildings of antenna and dishes under false ceilings, as imitation smoke detectors and other interior fittings.

A.4 of the GPDO sets out the definitions of all terms contained within the Development Order, including the meaning of 'Small Antenna'.

1. is for use in connection with a telephone system operating on a point to fixed multi-point basis;
2. does not exceed 50 centimetres in any linear measurement; and
3. does not, in two-dimensional profile, have an area exceeding 1,591 square centimetres

We should keep clearly in mind that the small antenna criteria would outweigh de minimis. In other words, if in the normal course of events some form of work/installation to an existing building took place which was true de minimis then permission would not be required, however if that same work/installation was telecommunication antenna and it exceeded the small antenna criteria then it would not be de minimis but either a permitted development, or a full development (depending on the criteria of the installation). Where small atenna had it not been for the fact that they are telecoms equipment been seen as deminimis, we put the case then clearly they would be small antenna which requires the appropriate permission, and cannot be taken as deminimis simply to avoid a more robust provision.

GPDO A1 (m), (n) and (o) sets out where 'small antenna' may be installed:

1. is not a small antenna;
2. being a small antenna, would result in the presence on that dwellinghouse or within the curtilage of that dwellinghouse of more than one such antenna; or
3. being a small antenna, is to be located on the roof or on a chimney so that the highest part of the antenna would exceed in height the highest part of that roof or chimney respectively;

1. on a chimney;
2. on a building which exceeds 15 metres in height;
3. on a wall or roof slope which fronts a highway; or
4. in the broads, on a wall or roof slope which fronts a watercourse;

1. the building is on article 1(5) land;
2. the building is less than 15 metres in height, and the development would result in the presence on that building of more than one such antenna; or
3. the building is 15 metres or more in height, and the development would result in the presence on that building of more than two such antenna.

Article 1(5) land is land set out in Part 2 of Schedule 1 of the 1995 GPDO, and includes land that is in a Conservation Area and land that is in a Site of Special Scientific Importance (SSSI), the GPDO does NOT apply to such land so therefore, whilst true de minimis would still require no permission the special categories such as those that fall within A.2(4)(b) and small antenna would require full planning permission.

Para 43 of the appendix to PPG8 specifically refers to de minimis, making it clear that they do not require permission, and that they may not fall within the definition of development as per the definition in T&CP Act 1990 Section 55 (see above). This para specifically refers to microcells that are disguised as burglar alarms coming within this remit.

We must not lose sight of the de minimis criteria that applies to the inside of buildings. Development is not development where it is not structural and takes place inside of the building. In other words you could knock down a dividing wall to create a larger room without any permission. Thus you can install antenna in buildings, it is interesting that the guidance and regulations all refer to exteriors and not interiors. Therefore arguably hundreds of these installations could be placed inside shopping malls, office blocks, stations and so forth with no permission. Normally these are of the Picocell variety antenna of only a few watts, but could also include Microcells. Typically each phone operator (and now TETRA) will have a network of these cells in every public building, the latest ones having them built into the design. Added together this could mean that every avenue of a shopping mall could have 6 to 10 Picocell installations, all hidden from view.

Worrying reports are reaching us that a number of local authorities are allowing installations in street lamps. The deal is that the operators pay a fee as well as supplying the street lamps and maintaining them. If this is replicated throughout the UK then we could see tens of thousands of 'small antenna' being erected on (or even inside) of street lamps. All of these would require NO local planning permission, and give NO opportunity for comment or rejection, even when they are close to sensitive locations such as schools or hospitals. This development is very worrying, and therefore needs special vigilance on our part to ensure that we make comment and challenges at the outset, and not wait until after the scheme has been approved by the various local authority finance committee.

So what does all this mean in reality. A small antenna can be installed on any building or structure, but not in our view on an existing mast, thus these could be fitted in theory to every lamp post in a street, or to every building in a town, all with no local permission (two on larger commercial buildings), every pylon, water tower, flood light and so forth. They could not though be erected on a new mast that was only for that installation, they could only be placed on existing buildings and structures. There is no provision for equipment housing, so therefore they would need to be cabled to either a central control centre, or to some internal equipment housing (that might create problems for the operator, as this would arguably be a change of use, that is unless the building was already a telecommunication development).

So in real terms it is of limited use. But where an operator has major problems, he may very well choose a central site for an equipment cabin, and then a number of Microcells and Picocells being connected via cables. But in real terms, there would be few opportunities to use these provisions on a wide scale.

Another aspect is using de minimis to install enlarged antenna, and additions to the mast on the basis that they do not material alter the external appearance of the structure or building. Not the different context this is put into, with small antenna you could not put them onto an existing structure as the size criteria would be exceeded. Whereas the operator could use de minimis where an existing installation needed additional antenna, or they needed to be increased in size.

Having said that, we now turn to reality and what is actually happening. Operators are using the threat of de minimis to bully local authorities into submission. They are also erecting antenna that do not come within the special conditions. You should challenge any installation that fails to come within the remit of a 'small antenna' that is on a building or structure, or is on a mast, even a roof based mast, that has been especially provided for that antenna. The installation if outside the remit would be unlawful and therefore the proper officer of the LPA is the enforcement officer who should take action, albeit that the LPA do have a discretion whether to take enforcement action or not.

If they refuse to take enforcement action, then first go to the media, then look to judicial review of the decision not to take enforcement action. More advice on that procedure is available on our judicial review forum.

Planning Sanity is very keen to hear of any instances of violations of the de minimis, or small antenna criteria, in order that we can build a case for change in this totally inappropriate process. Also keep in mind that whilst some small telecoms installations might escape its provisions larger installations, even if they come within the remit of small antenna or A.2(4)(b) would still be subject to the special provisions set out in para 17 ad 18 of the Electronic Communication Code see also the Planning Sanity briefing.

Standard Letter for use in objecting to small antenna, also send copies to your MP as this is an issue that needs to be constantly raised in Parliament, in order to secure a change in legislation. Standard Letter