PART 24 'A' OF THE GPDO
EVIDENCE OF LEASEHOLD - FREEHOLD INTEREST IN LAND

The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001 which was amended by the Communications Act 2003 (Consequential Amendments) Order 2003 (Part 5 Section 38) sets out that for the procedure within the Development Order to apply then either the proposed installation must be in accordance with the provisions set out in the Electronic Communication Code, or the Operator must have a freehold or leasehold interest of at least 10 years duration. It should be pointed out that the provision we are referring to in this document only relates to prior approval and prior notification installations and not those under the full planning process.

The relevant passage of 'A' is:

Development by or on behalf of a electronic communications code operator for the purpose of the operators electronic communications network in, on, over or under land controlled by that operator in accordance with the electronic communications code, consisting of -

The definitions at A.4 state:
"land controlled by the operator" means land occupied by the operator in right of a freehold interest or a leasehold interest under a lease granted for a term of not less than 10 years;

This is further emphasised within paragraph 2(1) of the Electronic Communication Code, where it sets out under the heading "Agreement required to confer right to execute works etc":
(1) The agreement in writing of the occupier for the time being of any land shall be required for conferring on the operator a right for the statutory purposes-

1. to execute any works on that land for or in connection with the installation, maintenance, adjustment, repair or alteration of electronic communications apparatus; or
2. to keep electronic communications apparatus installed on, under or over that land; or
3. to enter that land to inspect any apparatus kept installed (whether on, under or over that land or elsewhere) for the purposes of the operators network.

Now we must ask the question should we read the text of Class A of Part 24 as a stand alone statement, in which case we need to do no more than then look to see what restrictions or benefits can be gained for the operator from the Code, simple and straight forward. But we then have the definition in A4, so should we read the passage in Class A as incorporating the definition in other words should we read it as saying "Development by or on behalf of a electronic communications code operator for the purpose of the operators electronic communications network in, on, over or under land occupied by that operator in right of a freehold interest or a leasehold interest under a lease granted for a term of not less than 10 years in accordance with the electronic communications code"

I favour this latter interpretation, however, reading it strictly, it would read that the precondition is always that there would have to be as a minimum a 10 year lease. But whilst Code 2(1) backs up that assumption it fails to take into account the provisions within Code 9 which relates to installations on the maintainable highway, and grants consent to use the land (as opposed to the grant of planning permission) without the consent of the highways authority, which of course would fly in the face of the assumption of the need for a 10 year lease.

Therefore I think that it must be read so as to say that an operator must have a lease or freehold interest in the land, unless the Code specifically says otherwise, before the prior approval or prior notification processes can be used, if he does not hold such a lease or freehold interest of at least ten years then he would be required to make an application for full planning permission. Thus the Operator is granted permission to site installations on the maintainable highway subject to the grant of prior approval, prior notification or full planning permission.

The failure to hold such a lease (where the Code does not grant permission) would effectively make any installation unlawful, and any decision of a planning authority would be deemed to be ultra vires (beyond their powers). It is therefore clearly important to raise the issue with planning authorities to ensure that sufficient evidence has been provided (at the time of the application), which in our view should be a copy of the relevant lease (freehold) agreement, or demonstration the the proposed installation is being installed on a site in accordance with a Code right.

This aspect may also be useful if the landowner could not actually have granted the lease in the first instance. Perhaps because of a covenant preventing commercial activity, or that a covenant requires the permission of a previous owner, or trustees. We have had examples of leases being granted on council land that in it self is rented to a third party, perhaps a sports club, that contains an express clause that permission must be sought from the council. Another example might be that the applicant is applying for temporary permission for a period of less than ten years.

An explanation of ultra vires (beyond their powers) might be useful. Any action of the Local Planning Authority must be in accordance with the powers that have been afforded that Authority by statute, in terms of telecommunications applications for prior approval as we set out above these are contained within the GPDO. If a local planning authority exceeds the powers set out in those statutory provisions, then they have clearly acted contrary to law, that effectively makes those decisions unlawful, or best described as ultra vires. Therefore any permission granted contrary to those powers could be challenged up to 4 years after the development is undertaken, after that development is deemed to be granted through the restrictions on enforcement action being able to be taken after 4 years without a challenge.

A few words on whether a development is in accordance with the Code. First it is important to keep in mind that permissions granted under the GPDO are granted to the specific Code Operator, unlike other forms of planning permission which is granted to the land and NOT to a specific person. This is important as often applications are made in the name of agents, whilst an agent may apply on behalf of a Code Operator, the agent could not use GPDO powers to obtain permission which afterwards he might sell to an operator.

What is clear from Part 24 of the GPDO is that the Code System Operator must have sufficient control over the land occupied by the installation, and that degree of control existed at the time of the application. To put all this in simple terms an operator must demonstrate control over the land to the local planning authority, if it cannot, then the authority cannot accept, let alone determine an application under the GPDO, to do so would make the decision unlawful. This does not affect those applications decided by full planning permission.