Installing telegraph poles

The High Court recently rejected a judicial review challenge to the erection of telegraph poles. Gabriel Nelson examines the ruling, which considered the relationship between the GDPO and the Electronic Communications Code (Conditions and Restrictions) Regulations 2003.

The High Court has handed down judgment dismissing a judicial review of Wychavon District Council’s decision that proposals to install telegraph poles in the areas of Lifford Gardens and the Sands Estate “fell within the scope” of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”).

The case largely concerned the relationship between the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 and the GPDO and was based on two grounds:

1. Whether the Council, upon receipt of the code operator’s notification that the intended to install the poles under regulation 5 of the 2003 Regulations, was required to determine whether certain conditions in Class A of Part 16 of Schedule 2 to the GPDO were satisfied.
2. Whether the Council misinterpreted paragraph A.2(1)(c) by failing to recognise that it was required to consider whether the visual impact of the development had not been “minimised so far as practicable, taking into account the nature and purposes of the site” because the cabling had not been undergrounded.

The Claimant also made two late applications to amend their grounds. Namely, that the Council failed to give adequate reasons for its decision and that it failed to properly consult with the code operator.

In response to each ground, Richard Kimblin KC (sitting as a Deputy Judge of the High Court) held that:

1. The Judge accepted that, in order to assess whether the proposals benefitted from permitted development, it is necessary to assess compliance with the relevant conditions (J/79). However, the Council did consider the conditions and had the criteria in mind when making its decision (J/86). He also offered clarification as to how the regulatory scheme is intended to operate. Although, there is no determination for the Council to make at the notification stage (J/88), the scheme requires a dialogue between the Code Operator and the planning authority (J/92), which includes consideration of the conditions in the GPDO and the requirements set out in regulation 39(3) of the 2003 Regulations (J68-9).
2. Accordingly, the Judge also rejected the submission that the Council had not considered whether the visual impact of the poles could be minimised so far as practicable by placing them underground, as they had properly considered the conditions (J/96).
3. The application to include a consultation ground was accepted by the Judge. The ground was arguable and there was evidence of misunderstanding by the Council (J/103). The Judge accepted that regulation 3(1)(b) requires that a consultation take place between the code operator and local authority (J/69). He also accepted that members of the Council and the code operator were wrong to say that there was no such requirement (J/65 and J/73). However, the Judge considered that, in substance, there had been a legally adequate consultation (J/72). He also found that a consultation could overlap with a notification under regulation 5 (J/70) and that there was no requirement for the Council to reach a conclusion as to whether the Electronic Communications Code had been complied with prior to finding that the proposal benefited from permitted development rights (J/75).
4. The Judge rejected the Claimant’s application to include a reasons challenge, finding that the points were unarguable and made very late (J/105).

The case received press attention and the relevant Minister has released three ministerial statements addressing the issue this year. The case may therefore be of interest to local authorities, code operators and local residents in clarifying the legal relationship between the GPDO and the 2003 Regulations. 

Gabriel Nelson is a barrister at Francis Taylor Building. He appeared for the Claimant.