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Planning Sanity Briefing


Part 24 of the General Permitted Development Order sets out that for the procedure within the Development Order to apply then either the proposed installation must be in accordance with a provision of the Operators Licence (most applications on public highways, but not those on private land), or the Operator must have a freehold or leasehold interest of at least 10 years duration.

The relevant passage of 'A' is:

This should be cross referenced to the definitions at A.4:

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":

It follows from this that the Operator MUST provide evidence of the installation being in accordance with his licence, or he must produce evidence that he has sufficient control over the land before submitting the application, an agreement in the terms that if the permission is granted then a 10 lease will be granted is insufficient for the purposes of this section. Equally an operator installing equipment under one of the loopholes under Part 24 must have that same degree of control of the land to invoke that process.

The failure to hold such a lease 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.

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 discribed 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 System Operators Licence. First it is important to keep in mind that permissions granted under the GPDO are granted to the specific Code System 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 System Operator, the agent could not use GPDO powers to obtain permission which afterwards he might sell to an operator.

To determine whether the installation is in accordance with the operators licence, to the degree that would enable the operator to by-pass the requirement to hold either a leasehold or freehold interest in the site of the installation, then it requires investigation of the Telecommunications (Licence Modification) (Standard Schedules) Regulations 1999. These statutory provisions set out the standard licence requirements for a Code System Operator, the Regulations relating to planning and installations being contained within Part 2 Condition 2 of Schedule 4.

There is an obligation as a consequence of Condition 2.1 to give to the Local Planning Authority 28 days after the first occasion that the Code System Operator written details of the expected location of any telecommunication apparatus the LPA should have a record of any notice under this requirment, and that notice should be in the public domain. Condition 2.4 allows certain types of equipment to be installed without the consent of the local planning authority providing the required 28 days notice has been given, and providing the equipment does not exceed a height of 1.8 metres above ground level. The installation would not be in accordance with the Operators licence unless, and until an application under Part 24 has been made.

Condition 2.7 of Sch 4 of the Standard Regulations sets out:

Condition 2.8 sets out:

Except in those limited circumstances set out in Condition 2 of Sch 4 of the Regulations for it to be in accordance with the Code System Operator's licence it must also be approved under the procedures set out in Part 24 of the GPDO, and in particular the requirement 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.

(c) Planning Sanity - July 2004 (can be freely used by local communities within their campaigns. Publication by third parties is permitted providing acknowledgement of Planning Sanity is given)

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