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TEMPORARY INSTALLATIONS

This briefing should be looked at alongside our briefing on 'Emergency Installations', this can be viewed online or a hard copy requested from the helpline 0871 750 3992). Operators have been known to install masts stating that they are emergency installations, and then when challenged stating that it is really a temporary mast, and then apply for temporary planning permission.

Any development if it is only intended for a limited duration can have temporary permission granted. This will normally be the case in as far as masts are concerned where they cannot find a suitable site and need to get a mast up and feel the council might be persuaded to allow the development for a short period, but would not grant permission permanently. Or as we are increasingly seeing by the likes of 02 installing Airwave (TETRA) installations first, and then when challenged putting in for retrospective permission, it is that aspect that this briefing is mainly concerned with.

First there is no provision within Part 24 of the General Permitted Development Order (GPDO) for temporary permission, the reference to emergency installations being installed for 6 months in A(b) of Part 24 of the GPDO are to replace unserviceable installations and not for new installations (see briefing on emergency installations). Therefore, although they are not specifically excluded from prior approval applications, it is our contention that only applications for full planning permission can be made for temporary planning permission.

The primary legislation is the Town & Country Planning Act 1990 (T&CPA 1990), permission being granted under Section 57, whereas Section 70(1)(a) allows permission to be granted under any condition the local planning authority consider fit. Section 72(1)(b) allows for permission to be granted for a limited period, however, strict conditions must be attached, including provision for the removal of the development and restitution of the land to its original condition. Retrospective permission is granted under Section 73A, which is what normally happens in these cases.

The operator will install the installation either as a fixed development, or as a portable development that is on a vehicle or trailer, in as far as these installations are concerned there is no difference in the method or lawfulness of the development if it is fixed to the ground/building or is mobile. They know that once the development is in place the LPA will more than likely eventually grant full permission. It is therefore important that you object at every stage, and press for enforcement action to be taken. Having said that, it is lawful to undertake most forms of temporary developments and/or temporary changes of use for a period not exceeding 28 days in any 12 calender months, without seeking any permission, this provision is mainly used for developments such as markets and carnivals, thus stationing a mast on a moveable structure for 28 days for testing purposes would not be unlawful.

The other point to be made is that even if it is a temporary installation the procedures contained within Paragraph 17 of Schedule 2 of the Telecommunication Act 1984 where the mast can be forced to be taken down. See our briefing on Sch 2 (Electronic Communication Code).

The enforcement process is set out in Sections 171A through to 196C of the T&CPA 1990. If unlawful development (no planning permission) takes place then the LPA has the power to require the development to be removed, and that the activity cease (issue a stop order), if they fail to achieve this they can if need be take out an injunction. The developer can appeal the order, in which case there will be a public inquiry. The local authority have a discretion as to whether they should take enforcement action, although the Government has indicated in the Planning Green Paper that they are minded to make enforcement obligatory, and have issued a consultation on the subject.

Reality is that if the LPA do not take enforcement action it will be because the LPA do not want to pay the cost of a public inquiry, so they will simply either turn a blind eye, or they will do a deal that the operator submits a retrospective planning application. When they do issue enforcement, then it is more or less guaranteed that the operator will appeal. But it is not guaranteed they will win the appeal, there is about a 30% to 40% chance that the appeal will be dismissed (lost).

Local authorities are more likely to issue enforcement if the development is controversial therefore it is important to run a high profile publicity campaign. And to have large numbers of requests for enforcement, objection to retrospective applications, and further objections to any application to grant full permission. You can by that simple process win, your basic argument that it totally discredits the planning process for any breach of the process, especially as we have with operators that are breaking the law wholesale.

You could also consider seeking judicial review if the LPA fail to take enforcement action, however that process can be very expensive if you cannot obtain legal aid, or obtain insurance, see our briefing.

Retrospective planning permissions should be considered as if the development had not taken place, the argument that has been upheld by the courts is that the developer takes a commercial decision therefore they have to be prepared to bear the cost of that commercial decision otherwise the system would break down, as it would be a simple process of forcing permission where no permission should be granted. So tackle any challenge to a retrospective permission on that basis, and make sure that the LPA are aware of the need to ignore the fact the installation has actually been installed, except that it is an indication of the willingness of the developer to ignore planning constraints.

See below for a standard letter that can be adapted to local circumstances requesting the LPA to take enforcement action. Like all our letters and briefing they are provided to assist you with your campaign, therefore adapt to suit your case.

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

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Date s Postmark

To the Director of Planning

Dear Sir

RE: UNLAWFUL TELECOMMUNICATION INSTALLATION

I have become aware that the telecommunication installation at the above location has been installed contrary to planning controls, as such I respectfully request that your authority instigate enforcement procedures including the issuing of an enforcement notice and stop order.

Telecommunication code system operators are increasingly installing equipment without planning permission with the argument that it is an emergency. Parliament in its passing of the relevant sections of substantive and secondary legislation had clearly intended that this type of installation should be passed through strict controls over both the individual installation, as well as the wider roll-out of the system, the fact that the Electronic Code System Operator has ignored these processes has effectively denied the public the ability to make representation prior to the development taking place as well as discrediting the system to the detriment of the entire planning process.

The Government in the Planning Green Paper and subsequently in the have clearly set out that they are minded to implement compulsory enforcement action, which as you will be aware is the subject of a policy consultation. As such I urge you to take your responsibilities to upholding the credibility of the system, with the need to ensure that the publics rights to be consulted are upheld, whilst sending a clear message to those that flout the planning law that such abuses will not be tolerated within our Borough.

Whilst I also understand that the operator may submit a retrospective planning application, we would still urge you to issue enforcement action coupled to a stop order to ensure that the operation of this development is halted until such time as any retrospective planning application is considered, in order that those that flout the law are not able to benefit from such blatant disregards of the rights of local residents, and discrediting of the system.

I reserve the right to make such further representation as needed on any retrospective planning application, however I request that you notify me of your decision on the question of enforcement action being taken.

Yours sincerely


Local resident

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