The Court of Appeal has handed down a judgment dismissing an appeal over telephone kiosks and permitted development rights. Saira Kabir Sheikh QC explains why.
In New World Payphones Ltd v Westminster City Council & Anor  EWCA Civ 2250 the Court of Appeal has dismissed New World Payphones appeal against the decision of Ouseley J which upheld Westminster City Council’s challenge to the unlawful use of permitted development rights for advertisement purposes which had been granted for the purpose of the provision of public call boxes.
The council maintained that the General Permitted Development Order 2015 was being misused to allow thousands of kiosks to be erected which included electronic display panels for advertising purposes. Ouseley J allowed the council's challenge to an inspector's decision letter holding that such advertisement development did not fall within the scope of Part 16, Class A of the GDPO.
The decision of Ouseley J was challenged by New World Payphones. The Court of Appeal accepted the submissions for Westminster holding that:
"Whilst a public call box was permitted development within Part 16 Class A of Schedule 2 to the GPDO, the electronic display panel was not within any permitted class. The GPDO could not be used to obtain planning permission for a mixed planning use or “dual purpose”, because to allow it to be so used would allow permission to be obtained for development that was outside the scope of that permitted by executive (and, ultimately, by Parliament) under the GPDO, which would be an abuse of the GPDO."
The Court of Appeal also held that as a local planning authority, the council has a legitimate concern if applications potentially abuse the GPDO scheme as ultimately sanctioned by Parliament through the executive government.
This judgment is of wide significance and application. Despite the widespread use of mobile phones, applications for the erection of "phone kiosks" have burgeoned over recent years. The judgment of the Court of Appeal makes clear that telephone companies, many of which are now owned by advertising companies, are not able to misuse permitted development rights granted for an entirely different purpose as a guise for the erection of advertisement display panels. The misuse is widespread and local planning authorities will need to consider the status of existing such development in their areas. In addition, while the Government has recently removed the relevant PD rights for telephone kiosks, there are still many hundreds of appeals being processed by the Planning Inspectorate.