TELECOMMUNICATION INSTALLATIONS
EMERGENCY WORKS

The temporary installation in an emergency of telecommunication apparatus is only permitted under very strict conditions as a consequence of A(b) of Part 24 of the Town & Country Planning (General Permitted Development) (Amendment) Order 2001. For clarity the relevant sections are highlighted in red.

GPDO Part 24 A(b)
the use of land in an emergency for a period not exceeding six months to station and operate moveable telecommunication apparatus required for the replacement of unserviceable telecommunication structures on the land for the purposes of that use

And condition A.2(3)
Class A(b) development is permitted subject to the condition that any apparatus or structure provided in accordance with that permission shall at the expiry of the relevant period be removed from the land and the land restored to its condition before the development took place.

Planning Policy Guidance Note 8 (Telecommunications) (August 2001) Annex 1 Para's 24 & 25:

24. The prior approval procedure does not apply in respect of emergency development carried out under Part 24. Any Part 24 development carried out in an emergency is subject, under paragraph A.3(10), to the requirement that the operator shall give written notice to the local planning authority of such development as soon as is possible after the emergency begins. It should be noted that the requirement to notify the local planning authority is separate from the requirement under the Wildlife and Countryside Act 1981 where English Nature is notified as soon as possible after emergency development has taken place on an SSSI.

25.Although there is no statutory definition of what would constitute emergency development under Part 24, the definition of 'emergency works' given in paragraph 1(1) of Schedule 2 to the Telecommunications Act 1984 may be helpful as a general guide in the context of development by telecommunications code system operators. This is reproduced at Note A to this Annex. Whether a particular development constitutes emergency development will be determined on the facts of the individual case.
(note Sch2 was updated by Sch 3 of the Communication Act 2003. Sch 2 of the 1984 Act should now be referred to as the Electronic Communication Code)

Electronic Communication Code para 1(1) 'emergency works'

In relation to the operator or a relevant undertaker for the purposes of para 23 below, means works the execution of which at the time it is proposed to execute them is requisite in order to put an end to, or prevent, the rising of circumstances then existing or imminent which are likely to cause-

1. danger to persons or property
2. the interruption of any service provided by the operator's system or, as the case may be, interference with the exercise of any function conferred or imposed on the undertaker by or under any enactment; or
3. substantial loss to the operator or, as the case may be, the undertaker,

The definition set out above is not a definitive definition, only an indication, it cannot be read as the letter of the law that allows emergency works. The GPDO is the correct legislative document to visit first. Yet it would seem that operators are taking this definition as a statement of primary legislation, therefore it is necessary to look in detail at the works of the relevant sections to see what is or is not allowed.

In the context of all the relevant sections of primary and secondary legislation (as set out above) it cannot be concluded that any proposed 'works' are in fact 'emergency works' if the land does not have any telecommunication equipment that the proposed 'emergency works' will act as a replacement of unserviceable telecommunication structures for. That is a requirement as consequence of section A(b) of Part 24 to the GPDO, it follows that before any emergency works can be carried out, there first has to be a development that has become unserviceable.

Albeit there are indications of what may constitute emergency works within the definition contained in the 1984 Act, nowhere within that definition does it indicate any other course than that set out within A(b) of Part 24 to the GPDO should not be followed. The pecking order for planning legislation in this context is the GPDO, then PPG8, the Telecommunication Act has no relevance or bearing on the planning decision, although the licence agreement that emulates from the Telecommunication Act is relevant to deciding if the operator is in fact a Code System Operator, but as there should be no dispute of that fact then that Act does not apply, except that it provides a useful definition of what is an emergency works. Para 25 of the annex to PPG8 makes it clear that it is just that, an indication - 'may be helpful as a general guide'. The operators cannot circumvent the legislation by creating emergency works, otherwise the whole planning system for telecommunication applications would collapse. Any such unlawful development would of course be susceptible to enforcement action on behalf of the local authority.

Illustrations of where operators have attempted to unlawfully use the emergency works is on the argument that the development is emergency works due to the fact that the area is due to become fully operational in as far as TETRA is concerned. In our view those reasons could not possibly be seen as grounds that override national planning legislation. Nor is it a ground that it is commercially important that systems are put in place, or that the system will be used for the emergency services. That of course would not always be the case if there was already a lawful permission in place, and that the system that permission related to was broken down, and it is only in those circumstances where the provision can be applied, that is no existing installation that has broken down, then no emergency works.

The correct approach to emergency works is to check that there is an existing installation that has broken down, and that the proposed emergency installation is to actually replace that specific broken down equipment, and not some other operators broken down equipment. If it is not, then enforcement action should be commenced against the offending party.

Be careful not to confuse emergency works with temporary works. Temporary works are those that are going to be installed for a short period, but could be several years, but the time period, would always be set in the permission, which must be obtained before development commences in the same way as any other installation. However, any use of land for a period of 28 days or less does not require permission, although development could not take place, in other words, they could place a portable installation, on a lorry, or trailer for a period of up to 28 days.

A standard letter is available in our letters section that can be adapted for use in objection to unlawful emergency telecoms works.