Planning Court judge quashes permission given by planning inspector for site of telecoms mast
The High Court has quashed a planning inspector’s decision that a phone mast could be erected in Kingston Upon Thames despite the borough council having originally rejected it.
In Murtagh v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2991 (Admin) HHJ Jarman KC, sitting as a judge of the High Court, said that both grounds advanced by local resident John Murtagh succeeded and that appeal must be reconsidered.
Phone company Hutchinson had applied to build a 15m high street pole, three cabinets and ancillary works for a 5G mast on Kingston Hill, Coombe.
Hutchinson applied under schedule 2 Part 16 Class A Town and Country Planning (General Permitted Development) (England) Order 2015/5962.
Kingston refused permission and Hutchinson appealed under section 78 of the Town and Country Planning Act 1990
The inspector found the mast would harm the setting of Warren Cottage and the Coombe Wood Conservation Area, but decided the public benefit from additional telecommunications equipment would outweigh those harms.
Mr Murtagh, who owns Warren Cottage, sought review under section 288 of the 1990 Act.
His first ground was that the inspector failed adequately to consider alternative sites contrary to paragraphs 115 and 117 of the National Planning Policy Framework, or failed to give adequate reasons particularly concerning the relationship to an existing mast on the same street some 100 metres away
Secondly, he argued the inspector failed to address the impact of the proposed mast on a yew tree, which is subject to a tree preservation order, or failed to give adequate reasons.
The Secretary of State for Levelling Up, Housing and Communities said evidence supplied by Hutchinson showed alternative sites were not suitable.
Although it was admitted the inspector did not address the yew tree issue, the court was told “in any event the preservation of the yew tree is adequately dealt with under the Town and Country Planning (Tree Preservation) (England) Regulations 2012/605”.
HHJ Jarman said: “The inspector did not expressly consider the existing mast. It is possible he did not do so at all, because it was not specifically dealt with in the supplementary information. It is also possible that he did consider it but discounted it because of the general indication in that information that existing masts in the area were not suitable to support additional equipment to extend coverage.”
The judge said decision letters were written principally for people who already know the issues and evidence and an inspector “does not need to rehearse every argument relating to each matter in every paragraph”.
But he said the reasons for an appeal decision “must be intelligible and adequate, and be capable of being understood as to why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues”.
He concluded: “The inspector's decision does not permit an understanding as to why the appeal was decided as it was, and what conclusions, if any, were reached in respect of the existing mast.”
Turning to the yew tree, the judge said this “should have been dealt with if it were a principal issue. The information set out was sufficient to raise the issue of potential damage to the roots of the tree given the proximity of it to the proposed mast and associated cabinets”.
A Kingston planning policy stated developers should ensure their works do not adversely affected protected trees
HHJ Jarman said this policy "was a material consideration” and the inspector should have dealt with it even if only to give reasons why he did not feel the tree could justify dismissing the appeal.
Mark Smulian
