24 July 2019

5G roll out: Permitted development rights could impede installation of masts

The Court of Appeal has recently upheld a High Court decision which confirms the meaning of “mast” for the purposes of permitted development. The relevant legislation  defines a “mast” as a “radio mast or tower”.

The legislation provides permitted development rights on small, building-based antennae and cell systems, and specifically provides that masts installed on buildings which are less than 15 metres in height, and which are within 20 metres of a highway, are not permitted development so will require planning permission.

In the case R (on the application of Nigel Mawbey) and Others v Cornerstone Telecommunications Infrastructure [2019] EWCA Civ 2016 – the judgment sets out that the term “radio mast” should be broadly interpreted as including any pole which supports antennae which transmit and receive radio waves.
The appeal in question is a consequence of the installation of a number of “pole mounts”, used to support antennae, which had been installed on the rooftop of Forsythia House in Lewisham by Cornerstone Telecommunications Infrastructure Limited (“CTIL”), a joint venture between Vodafone and Telefonica. The rooftop in question was 10.2 metres high and within 20 metres of the highway.

Lewisham Council had accepted CTIL’s argument that the apparatus, which comprised nine antennae, mounted in groups on the four corners of the roof, with each antenna supported on an antenna pole, attached by a yoke to one of four central support poles and attached to a tripod mounted on a concrete plinth, were not masts. The central support poles are just under 3 metres in height and reached up to 13.5 metres above ground level.

CTIL argued that the word “mast” denotes: "…a tall, self-supporting, structure that supports antennae at a height where they can satisfactorily send and receive radio waves and is capable of providing 360 degrees coverage from a single position…" and that this would exclude a pole mount.

However, Lord Justice Lindblom’s judgment was that, in the telecommunications context, a mast means any “…upright pole, or lattice-work structure whose function is to support an aerial or antenna… Thus the task of a local planning authority in determining whether a particular structure is a mast [within the legislation] is simply to ascertain whether, as a matter of fact and degree, it is an upright pole…whose function is to support an antenna or aerial.

Linblom went on to state that the definition of a “mast” in Part 16 of the GDPO 2015 is not qualified and “…does not have to be ground-based, or of any particular scale or design”, in order to qualify as a mast. “Thus the task of a local planning authority in determining whether a particular structure is a “mast”…is simply to ascertain whether, as a matter of fact and degree, it is an upright pole – or another structure to which the definition…applies – whose function is to support an antenna or aerial…

He added: "This was not the approach adopted by the council when it determined that the apparatus installed on the plant room of Forsythia House did not comprise a mast… The Council's interpretation was, in my view, too narrow and incorrect. This was an error of law, fatal to the council's decision."

Lewisham Council will now, in light of the Court of Appeal's ruling, have to reconsider its decision that the apparatus is permitted development.

This decision has to be viewed in the context of a statement on 12 June 2019 by the Department for Digital, Culture, Media and Sport which confirmed that the Government will "consult on proposals to simplify planning processes in England to both support the further roll-out of 4G and aid the faster introduction of 5G”. However, no timeframe for this consultation has been provided to date. The consultation follows the 2018 Government publication Future Telecoms Infrastructure Review, which outlines Government targets to extend full-fibre broadband and 5G connectivity to: “…15 million premises connected to full fibre by 2025, nationwide coverage by 2033….with the majority of the population covered by 5G networks by 2027.”  The Review goes on to state that: “to achieve these targets will require the national roll out of gigabit capable networks at pace and significant investment in 5G infrastructure and services.

Inevitably there will be telecoms operators that will fall foul of the PD Rights limitations on masts and, in its current form, Part 16 of the GDPO will impede the faster roll out of 5G mobile coverage. There may also be the potential for enforcement action against operators who have erroneously relied on PD Rights to install masts on certain sites and related issues regarding leases where the equipment in place is in breach of planning laws.