Murtagh v Secretary of State for Levelling Up, Housing and Communities

Town and country planning – Prior approval – Telecommunications – Local planning authority refusing prior approval for siting and appearance of telecommunications pole – Defendant secretary of state allowing appeal – Claimant applying for statutory review – Whether inspector erring in law – Application granted The first interested party telecommunications provider applied for prior approval for the siting and appearance of a 15m high street pole and three cabinets and ancillary works for the purposes of 5G on Kingston Hill, Coombe. The application was made pursuant to class A in part 16 of schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The second interested party, as local planning authority, refused the application on the grounds that the proposed telecoms equipment, in particular by virtue of its height, would be visually intrusive and create visual clutter, causing less than substantial harm to the significance of the conservation area. The first interested party appealed under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the defendant secretary of state, following a site visit, found that the proposed mast would harm the setting of the locally listed building (Warren Cottage) and the conservation area in which it would be situated. Nevertheless, he concluded that the public benefits from additional telecommunications equipment would outweigh those harms, and allowed the appeal. The claimant owned Warren Cottage which abutted the pavement where it was proposed to site the proposed mast. He applied for statutory review, under section 288 of the 1990 Act, of the inspector’s decision contending that the inspector failed: (i) adequately to consider alternative sites, contrary to paragraphs 115 and 117 of the NPPF, or failed to give adequate reasons; and (ii) to address the impact of the proposed mast upon a yew tree within the claimant’s property which was subject to a tree preservation order, or to give adequate reasons. Held: The application was granted. (1) When it was suggested that an inspector had failed to grasp a relevant policy, one had to look at what he thought the important planning issues were and decide whether it appeared from the way he dealt with them that he must have misunderstood the policy in question. Because it was reasonable to assume that national planning policy was familiar to the defendant and his inspectors, the fact that a particular policy was not mentioned in the decision letter did not necessarily mean that it had been ignored: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2017] PLSCS 196 considered. In the present case, it was not apparent from the way the inspector dealt with the issue of whether the existing mast should be considered, that he misunderstood the need to justify the proposed mast. He referred to the information submitted by the applicant which showed a need for a mast in the area and that alternative sites had been looked at. That suggested that he was aware of the requirements of paragraph 117 of the NPPF. Paragraph 115 encouraged the use of existing masts, but did not prohibit new masts even where there was an existing one. However, under paragraph 117, the new mast had to be justified. (2) The inspector did not expressly consider the existing mast. It was possible he did not do so at all, because it was not specifically dealt with in the supplementary information. It was also possible that he had discounted it because of the general indication that existing masts in the area were not suitable to support additional equipment to extend coverage. It appeared that the existing mast was about the same distance from the desired search area than the site of the proposed mast. Another possibility was that he took the view that the existing mast was outside the desired search area, but so too was the proposed mast. The defendant argued that the supplementary information justified the need for the proposed mast and it was not incumbent on the inspector to consider the existing mast. However, it was specifically raised as an issue by the claimant and should have been grappled with by the inspector. In any event, his reference to the alternative sites as having greater effect left a real doubt as to how he reached the conclusion that the proposed mast was justified at this site. (3) Decisions of inspectors should be construed in a reasonable flexible way. Decision letters were written principally for parties who knew what the issues between them were and what evidence and argument had been deployed on those issues. An inspector did not need to rehearse every argument relating to each matter in every paragraph. The reasons for an appeal decision had to 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. The reasons need refer only to the main issues in the dispute, not to every material consideration. However, the inspector’s decision did 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 exiting mast: St Modwen Developments considered. (4) The information provided was sufficient to raise the issue of potential damage to the roots of the yew tree given its proximity to the proposed mast and associated cabinets. Policy DM10 of the relevant local plan policy provided that the council would expect new development to ensure that trees that were important to the character of the area or covered by tree preservation orders were not adversely affected. Policy DM10 was a material consideration and indicated that the defendant expected it to be shown that any development, which the proposed mast would be, would not adversely affect the yew tree. The inspector should have dealt with that issue. It would have been open to him to do so by giving reasons why that issue could not justify dismissing the appeal, but he should have dealt with it. His decision would not inevitability have been the same: Simplex GE (Holdings) Ltd v Secretary of State for Communities and Local Government [1988] 3 PLR 25 considered. Accordingly, the decision of the inspector had to be quashed and the appeal remitted for redetermination. Leon Glenister (instructed by Leigh Day) appeared for the claimant; Riccardo Calzavara (instructed by Government Legal Department) appeared for the defendant; The interested parties did not appear and were not represented. Eileen O’Grady, barrister Click here to read a transcript of Murtagh v Secretary of State for Levelling Up, Housing and Communities