Telecoms: planning for success

In April 2022, to support the 4G and 5G roll-out across England, the requirements in terms of planning legislation for telecoms were relaxed so as to avoid the need for a full planning application in certain circumstances.  This was achieved by an extension of permitted development rights contained in Part 16 of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 2015 with regard to England (similar extensions were made for Wales). This piece focuses on the extensions to PDRs by changing the height and area exceptions contained in Class A of the 2015 Order.  Certain development permitted by Class A is conditional on prior approval being given; however, that process is outside the scope of this note. Permitted development in practice Permitted development operates by providing deemed planning permission, removing the need for an application.  Part 16 confers this so long as it is for the purpose of a network, and allows the installation, alteration and replacement of apparatus. It permits the use of land to station and operate moveable apparatus and structures in an emergency, for a period not exceeding 18 months. The definition of “electronic communications apparatus” in paragraph 5 of the Electronic Communications Code applies. In one sense, the requirements are straightforward: so long as the electronic communications apparatus is being used for the operator’s statutory purpose, it will qualify. Where land is being used, there is the additional criteria that the use must be in an emergency only, and then time limited for a maximum of 18 months.  The technical details As a result of the broad deemed permission, there are detailed and lengthy exceptions in relation to height and area. In relation to height for ground-based apparatus, these include not rising more than 15m from ground level (excluding antenna) in the case of new installations. For current installations, the limit is the same or the height of existing apparatus, whichever is greater. Masts should be no taller than 30m in the case of unprotected land, or 25m for land which is on a highway or is article 2(3) land under the 2015 Order (national parks; areas of outstanding natural beauty; the Broads; areas specified by the secretary of state and DEFRA for the enhancement and protection of natural beauty and amenity of the countryside; conservation areas; or World Heritage Sites).  For masts on sites of special scientific interest, any alteration or replacement of a mast should not exceed the original width of the mast by one third. For building-based apparatus (excluding small antenna and small cell systems) there are similar provisions, where the height of the electronic communications apparatus (taken by itself) would exceed the following limits (for apparatus on masts on buildings, the requirements are the same, save that the words “taken by itself” are omitted).  The limits are: 15m on any building which is 30m or more in height or 10m in any other case. Further, the highest part of the installed, altered or replaced apparatus must not exceed the height of the highest part of the building: by more than 10m in the case of a building which is 30m or more; by more than 8m in the case of a building measuring 15-30m; and by more than 6m in any other case. For article 2(3) land or land comprising a site of special scientific interest the restrictions are tighter; the mast is to be less than 15m in height, and then only where it is within 20m of a highway, unless the siting remains the same and the dimensions of the altered or replaced mast are no greater.  Dishes must be less than 0.9m in diameter, and the aggregated size of all less than 4.5m for buildings less than 15m in height. Where the antenna is to be located less than 15m up on a taller building (whether on a mast or not), the site must be less than 20m from the highway and the number of antenna systems limited to a maximum of three and/or three operators.  For buildings in excess of 15m in height, the permissions are somewhat wider: dish size is limited to 1.3m, the aggregate 10m, the distance from a highway 30m, a maximum of five antenna systems, but still a maximum of three operators.  There is no permitted development for listed buildings or scheduled monuments with regard to this sort of apparatus. There are further requirements for article 2(3) land and sites of special scientific interest.  Development within the curtilage of a dwellinghouse is only permitted if the apparatus is a single, small antenna, is within 20m of a highway and is located on the chimney above all other chimneys and roofs.  For buildings which are not dwellinghouses, the antenna must be within 20m of a highway, be the only small antenna within the curtilage of a building that is less than 15m in height, or be one of a maximum of two small antennas on buildings between 15m and 30m in height. Both must be outside article 2(3) land and sites of special scientific interest.  Development consisting of the installation, alteration or replacement of any apparatus other than a mast or antenna or apparatus which does not project above the level of the surface of the ground is not permitted by Class A(a) if the ground or base area of the structure would exceed 1.5 sq m. There are further separate exclusions for driver information systems, radio equipment housing and public call boxes. Laura West is senior associate (barrister) at Penningtons Manches Cooper