Airwave MM02 Ltd v First Secretary of State & Ors [2005] EWHC 1701 (Admin)

Case No CO/4923/2004[2005] EWHC 1701 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 30th June 2005
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE GILBART QC
Between
AIRWAVE MM02 LIMITEDClaimant-v-
Between
FIRST SECRETARY OF STATE AND OTHERSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR C BOYLE (instructed by LAWRENCE GRAHAM) appeared for CLAIMANTMR D FORSDICK (instructed by TREASURY SOLICITORS) appeared for DEFENDANT
J U D G M E N T
[1]HIS HONOUR JUDGE GILBART QC: This matter is concerned with the interpretation of and application of Part 24 of Schedule 2 of the Town and Country (General Permitted Development) Order 1995. That is the provision whereby planning permission is granted by development order rather than under the usual process of application under section 62 and Part 3 of the Town and Country Planning Act 1990. It is therefore convenient to set out the terms of Part 24 which are relevant to this matter. I am not going to read the whole of Part 24, but only the salient parts. Class A deals with permitted development. That includes:
"Development by or on behalf of an electric communications code operator for the purpose of the operator's electronic communications network in, on, over or under land controlled by that operator [or] in accordance with the electronic communications code, consisting of- (a)the installation, alteration or replacement of any electronic communications apparatus..."
That is Part 24, section A and I have read down to section (a).[2]Under A1 "Development is not permitted by Class A(a)" if:
"in the case of the installation of apparatus (other than on a building or other structure) the apparatus, excluding any antenna, would exceed a height of 15 metres above ground level..."
Then, if I can go to the conditions which apply, A2 deals with conditions that apply and I note that A2 subparagraph (1) reads:
"Class A(a) and Class A(c) [with which we are dealing] development is permitted subject to the condition that any antenna or supporting apparatus, radio equipment housing or development ancillary to radio equipment as constructed, installed, altered or replaced on a building in accordance with that permission must, so far as practicable, be sited so as to minimise its effect on the external appearance of the building."
A3 contains the following, and it is summarised by saying it is a code for dealing with these applications in a particular way:
"(1) The developer must give notice of the proposed development to any person (other than the developer) who is the owner of the land to which the development relates, or a tenant, before making the application required by paragraph (3)..."
It then deals with the service of notice. (2) deals with the development near an aerodrome, which does not apply here, (3):
"Before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development." (4) deals with what must accompany the application. (5) deals with consultation by the local authority. (6) deals with taking into account representations, and then I come to (7): "
The development must not be began before the occurrence of one of following- (a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (b) where the local planning authority gives the applicant written notice that such prior approval is required, the giving of that approval to the applicant, in writing, within a period of 56 days beginning with the date on which they receive the application; (c) where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of a period of 56 days beginning with the date on which the local planning authority received the application without the local planning authority notifying the applicant, in writing, that such approval given or refusal; or (d) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application without the local planning authority notifying the applicant, in writing, of their determination as to whether such prior approval is required."[3]A.4 deals with the interpretation of Class A and I will merely note that it deals with a definition of antenna system, but which is not of help on this. It deals with the definition of mast, again which is not of help here. Antenna is not defined as such. However, the word "antenna" also appears in the phrase "satellite antenna" in Class 1 part H which relates to satellite TV aerials. It is interesting to note the definition of satellite antenna in Article 1.(2) of the permitted development order. It reads thus:
"satellite antenna" means apparatus designed for transmitting microwave radio energy to satellites or receiving it from them and includes any mountings or brackets attached to such apparatus."
As I shall come to, one of the major issues in this matter relates to the definition of the word 'antenna' within Part 24.[4]I come now to the relevant history and the context. The developers are the claimants before me, that is Airwave mmO2 Limited. The developers propose the erection of a transmitter, which would function as part of the communication system, commissioned by the Home Office, to enable improved communications by the police and other public services. However, communication masts now excite public controversy due to fears of effects on health. I express no view on the planning merits or otherwise of the arguments on either side. But I do note that the procedure under the General Permitted Development Order is designed to speed up the system for dealing with proposals for such masts and indeed for granting consent for them, effectively if the local planning authority do not refuse approval within a shorter time scale.[5]The site lies with in what was described in the local authority's officer's report as an extensive industrial area. It is a site within the city of Birmingham. Birmingham is the relevant local authority. There is housing about 160 metres away in two directions and a primary school 340 metres away. The developers submitted an application on 18th November 2003 for "15m monopole tower with 3 x 4-stack dipole antennas and 2 equipment cabinets together with ancillary apparatus." One of the accompanying plans which was at 1 to 100 scale, and called "proposed elevations" showed a 15 metre high mast. Just below its top and therefore at under 15 metres it showed a structure consisting of an horizontal section running out of right angles from the mast, supporting very short vertical sections, to which are affixed vertical antennae. The horizontal section has the shape of a highly flattened letter H.[6]The vertical sections are shown not rising above 15 metres above ground level. The antennae are shown as rising to somewhere in excess of 17.5 metres above ground level. The plan also shows a plan view from above of the "antenna/antenna support frame" at 1 to 50 scale. At no stage in the subsequent process of consideration by the local planning authority was it ever suggested that the proposal fell within exclusion A1 of Part 24. It will be recalled that that reads:
"In the case of the installation of apparatus other than on a building or other structure, the apparatus, excluding any antenna, would exceed a height of 15 metres above ground level."
I am unaware of any representation to such effect from any party until the very end of the procedure. The developers had actually constructed a mast on the site before the application was made, claiming, at that time, that it was erected under emergency powers though that was not advanced before me.[7]It is worth noting that the professional officer had advised, on 18th November 2003, and again on 8th January 2004 that prior approval should not be required. The city council's policy was to resist such developments within 200 metres of schools. It will be recalled that this lay further away than that. He noted also there were unlikely to be any further locations in the locality at a substantially greater distance from housing or schools. Indeed, in some cases the alternative locations would be closer to schools. He noted that the maximum signal strength would be 75 metres from the mast "well short of both school and residential property." He also noted that "topography trees and buildings hide impact of mast to an acceptable degree."[8]The local planning authority refused approval on 8th January 2004 on one ground only:
"The telecommunications equipment is perceived as potential risk to the health of residence and children attending nearby schools."
[9]The developer appealed. It was heard by written representations. There was plainly one issue to address on the appeal. Understandably, the developer and the local planning authority both concentrated on dealing with arguments about the degree of risk and its perception and the effects of government policy on telecommunications development, set out in Planning Policy Guidance Note No 8. It is notable that at no point in its submissions did the local planning authority ever contend that the proposal fell outside Part 24. That, of course, does not bind an Inspector.[10]On 6th July 2004 the Planning Inspectorate, on behalf of the Inspector, wrote to the developer's agents as follows:
"The Inspector who conducted the site visit on 28 June 2004 has asked that I write to you seeking your views about the appeal. The application was made pursuant to the Town and Country Planning (General Permitted Development Order) 1995 (GPDO) for prior approval. Telecommunications apparatus is permitted by Class A of Part 24 Schedule 2 subject to a number of conditions. A1(a) of Part 24 provides that the apparatus, excluding any antenna, would not exceed a height of 15 metres above the ground. The Council's statement says the proposal is a 15m mast surmounted by 3 no directional, four stack antennas on a support boom, leading to an overall height, based on the submitted plan, of approximately 17 metres." [I interpose that the overall height, according to that question, is therefore the height of the four antennae on the support beam. I go back to the inspectors's words]. "
The Inspector requests your views on whether the support booms are apparatus or antennae for the purposes of applying the provisions of GPDO. The Inspector saw at his visit that a mast has been erected. The submitted plan indicates a lightning filial projecting above the support booms, but this was not apparent on the erected mast. The plan also shows 2 No Airwave outdoor equipment cabinets, but only one, sited on concrete beams, existed at the time of the Inspector's site inspection. The written evidence refers to the following- [she then set out in four subparagraphs the following-] "Airwave letter dated 29 August 2003 which states" [I interpose Airwave is the developer.] 'Due to the timescales to which we are working, this means that planning permission would be sought retrospectively in the event that apparatus need to be in place for a longer period than that for which Airwave has emergency powers." "Email from Airwave dated 17 December 2003 states '... we have built the site prior to planning...'" "Officers report to 18 December 2003 committee states:
'The mast has already been erected on site under an emergency works notice...'" "Council's decision on 8 January 2004 describes the development as '
Retention of telecommunication radio base station...'" "Paragraph 9.2 of the appellant's statements state that:
'... despite an installation being erected at the site during the determination period...'" She then continued: "A3(3) of Part 24 refers to action '
Before beginning development...' and A.3(7) says 'The development shall not be begun before...'" The Inspector requests your views on whether the scheme would satisfy the criteria for permitted development in the [General Permitted Development Order]. The Inspector invites submissions about whether the GPDO applies in this case or whether the scheme constitutes development for which planning permission, other than by development order, would be required. Your comments on or before [14 days] will be appreciated...". And the letter then finishes.[11]On 14th July 2004 the developer's agents wrote as follows to the Inspectorate.

(a) , Part 24, and then went on:

"It is our opinion that the order is clear in excluding antennae from the 15 Metres limit. In this case the applications show that the top of the tower is 14.76 Metres above ground level and that the antenna supports come out at a right angle, slightly below this level. Therefore the antennae are the only parts of the structure that exceed 15 metres as the support booms do not exceed this height. The upright part of the(sic) are part of the antennae array are essential for the obtaining of the correct propagation pattern necessary for the operation of the site."
The words "part of the" should be placed in brackets but that is the only way you can make the sentence make sense. This is why it is referred to as a 4-stack dipole antenna. There are some typographical errors but the sense is clear. In my judgment, they were saying that the booms were the horizontal part, which were below 15 metres. The upright part above that, was part of the antenna array as it was essentially for obtaining the correct propagation pattern." They went on:
"This view would appear to have been accepted by the LTA in their description of development. The inspector has noted that the installation was erected before the grant of prior approval under part 24. It is acknowledged that this is case. Should the inspector require any additional information regarding the appeal please do not hesitate to contact me."
[12]There were letters from local residents. There was one from a gentleman whose name I regret to say I cannot read from the letter, though I suspect it is Mr Rhys-Roberts dated, 14th July 2004. In his letter, he said this:
"It is our unanimous opinion that the booms supporting dipole antennae are part of the apparatus, they are structural serving only to support the antennae which receive and transmit microwaves, the booms also support the various cables which service the antennae. The booms are structural and weight bearing and are reached up a ladder which runs up the main support pole."
A further letter from Councillor Hunt of the Birmingham Perry Ward of 19th July referred to Mr Rhys-Roberts' letter and went on and said this:
"Having inspected the mast closely and taken photographs of it, it is clear that the support booms are structures that hold the antennae rather than the antennae themselves. The photographs show the antennae clamped to them and wires attached to the four. Therefore their main function is support. I hope this is of assistance."
He attached to that a series of photographs, five photographs of the antennae.[13]The local planning authority replied on 19th July. They said this:
"The mast boom (head gear) are understood to have been installed almost 8 weeks before the application was submitted (26th September and 19th November respectively). References in the appeal to this have not been disputed. The application was a prior approval notice. Height of mast is fractionally under 15 m but nearly 17 m if headgear included. Antennas are excluded from the 15 m height limit, but the question raised by the Inspector is whether the support booms are apparatus or antennas. The view could be taken that the booms could not be described as apparatus, since they have no purpose other than to support the antennas and have no 'telephonic' function otherwise. Therefore, as they are an integral part of the antennas, they should be so identified. If this view is accepted, then the proposals would be 'permitted development' but requiring prior approval."
They referred to another decision from Leeds, contending that the headgear was apparatus and should have been included within the 15 metre limits. I pause to say that I have read that decision. I have found some difficulty in understanding how it is that Birmingham City Council thought that supported that contention. But there it is. Then they referred to the Inspector identifying:
"... Condition A.3(3) of Part 24 in relation to qualifying this development as 'permitted development'. Since this requires a prior approval notice to be submitted before beginning the development, but the application was submitted after the development took place, the condition was not and could not be complied."
I think that should have the word 'with' added. "This calls into question whether the Part 24 procedure was applicable in the first place. Conclusion: In view of condition A3(3) and the Leeds appeal decision, there appears to be a strong case for arguing that the application should have been for full planning permission, rather than prior approval." Then he refers to the expiry of the emergency provisions period, and then the City Council's position on this appeal is clearly very sensitive:
"Public opinion is against the installation and will expect the City Council to be supportive, as indeed is happening. Enforcement action at the present time is inappropriate with the appeal being under consideration. Much will depend on the Inspector's decision as to whether he is able to deal with the appeal."
I do note that the City Council had never previously expressed the views which it set out in that letter. But again, that does not constrain the Inspector.[14]Now the Inspector produced his decision letter on the 2nd August 2004. It reads as follows:
"1. The application was made pursuant to the Town and Country Planning (General Permitted Development) Order 1995 (as amended (GPDO) for prior approval."
He then recites the effects of paragraphs A.1(a) A.3(3) and A.3(7).[15]Paragraph 2:
"The Council considers the scheme to be a 15 m mast surmounted by 3 no directional four stack antennas on a support boom, leading to an overall height, based on the submitted plan, of approximately 17 metres. The Appellant notes that the top of the tower is 14.76 metres above ground level and that the antenna supports come out at a right angle, slightly below this level. In the Appellant's submission, the upright parts of the antenna array are essential to obtain the correct propagation pattern, and is why it is referred to as a four stack dipole antenna. 3. The GPDO does not define 'antenna'. It seems to me, that an antenna is a passive electrical component that transmits and receives radio waves. In this case, there are four antennas mounted on each of the three upright support structures. However, the support structures are not a passive electrical component. It appears that separate cables convey electrical signals to and from the antenna. As such, the upright supports serve only to raise the antenna to different heights. I consider, therefore, that the upright supports are apparatus and not antenna for the purposes of applying the provisions of the GPDO. As this apparatus exceeds a height of 15 metres above ground level, I find that the scheme does not calm comply A.1(a) of Part 24. 4. There is no dispute in this case that the mast was erected prior to the application being made. The certain actions required by A.3(3) to be carried out before beginning the development were not done before the mast was erected. None of the occurrences cited in A.3(7) occurred before the development was begun. The development cannot, therefore, benefit from the permitted development rights conferred by Part 24. Conclusions. 5.Certain criteria must be met in order to benefit from the provisions of Part 24 of Schedule 2 to the GPDO. In this case, I have found that the upright supports are apparatus, which exceed a height of 15 metres above ground level. The scheme does not, therefore, comply with A.1(a), of Part 24. Even if I am wrong about this, I do not consider, given that the mast was erected before the application was made, that the prior approval provisions of the GPDO apply in this case. Development has been carried out for which planning permission is required. Any application for such permission would be a matter for the local planning authority to consider in the first instance. According the current appeal for the prior approval must fail"
He dismissed the appeal.[16]Thus the Inspector never addressed the main issue in the appeal, but decided it on the two technical matters that he raised which had not been raised before.[17]I deal first with the question of antennae. It is agreed by counsel before me (that is Mr Boyle, for the claimant, and Mr Forsdick for the First Secretary of State,) and properly so, that the definition of antennae is a matter of law. It is then for the Inspector to determine whether as a matter of fact and degree the relevant part of the installation in question falls within the definition of antenna.[18]I do not accept his analysis. On a fair reading of the plans and of the material before him, the installation had three elements relevant to this issue. Firstly the mast. Secondly, the horizontal H shaped structure, with its short vertical end sections, and thirdly, the vertical objects called antennas on the plans. Plainly, it was for the Inspector to consider whether what he was considering -- and that is the vertical sections, everything else was below 15 metres -- it is for him to consider whether it fell within the description antennae, remembering that that is a matter of law.[19]The Inspector seems to be distinguishing between the parts of the antennae. Thus, distinguishing between the part of the object which receives or transmits, on the one hand, and on the other, the part which carries the power to it, or whose role is to hold the transmitting or receiving component itself, or, as was put before him here, a part which also assists function of the directional transmission or reception of signals. It seems to me that the Inspector's approach would only permit the first function, ie being the part which receives or transmits, as falling within the definition of antenna. As Mr Forsdick accepted during the argument, the justification for the distinction between apparatus and antennae in Part 24 is there for a good planning reason, that is antennae being much less substantial have much less visual impact than the structure which supports them.[20]In my judgment, the correct approach in law is as follows. Many pieces of engineering have component parts which do different jobs but must be looked at overall to see what they do as a whole. In some cases one can envisage having one antenna or a set of antennae rising vertically. In another case one might have less substantial antennae clamped to a pole, or antennae split into separate vertical sections the one above the other, but fixed to a pole. For example: one might have a choice between a 1 metre high antenna, or four 25 centimetre antennae raised vertically one above the other affixed to a pole. The poles may, as was argued here, contribute to the functions of the receivers and transmitters. They support by being in a particular array or disposition, or by being charged. So in interpreting Part 24, in my judgment, one has to look at the part of the installation in question and ask as a matter of fact and degree whether it is part of the antennae part of the installation, or part of the installation which supports them. One will then form a judgment about where the dividing line falls. It is not enough simply to ask whether the bit in question is actually transmitting or receiving.[21]Mr Forsdick raises the concern that this might allow large and bulky sets of apparatus to appear which are really supports rather than part of the antennae. That, in my judgment, is to be far too pessimistic. Inspectors are well able as a matter of fact and degree to decide that the main function of a part of the apparatus is not reception or transmission, but support. Therefore they will be able to ensure that that the purpose of the distinction in Part 24 is observed. In my judgment, it is not appropriate to apply as restrictive a definition of antennae, as the Inspector did. His definition was:
"A passive electrical component that transmits and receives radio waves."
I regard that definition as too limited.[22]But even if I am wrong about that, I consider that the Inspector failed to deal with this matter fairly. His letter of 6th July dealt with what he called three 4-stack antennas on a support beam and then going to an overall height of 17 metres, and then requested views on whether the support booms were apparatus or antennae for the purpose of applying the provisions of GPDO. He did so in the context of (and it is in the previous sentence) "three number directional 4-stack antennas on a support boom." In my judgment, in that context the phrase "support boom" can only have referred and can only have been taken to refer to the horizontal structure. It is common ground that the horizontal part of the structure projects at 14.76 metres above ground level, and the plan that showed that the short vertical component within the horizontal section does not project above 15 metres. But in his decision letter, he discussed whether the upright supports, ie the part above 15 metres, were at or above that level. That, in my judgment, is a departure from the approach in his first letter. That approach had come, quite plainly, from the representations of the objectors. In my judgment, what he was likely to be referring to in the letter of 6th July, and certainly would have been taken as being so, was the horizontal structure. When he got the claimant's letter of 14th July, whatever the occasional typographical error may be within that letter, it was perfectly obvious that the developers had understood him to be referring to the horizontal structure. Yet in his decision letter, he treats the whole of the apparatus except the transmitting and receiving parts as part of what now he calls in the decision letter "support structure".[23]I consider that the confusion was obvious and he was bound to ask the question directly of the parties to clear up the confusion. Instead he took the objectors' point in answer to his letter about the fixing of wires and adopted that approach.[24]Indeed, Mr Forsdick conceded in argument that had the objectors made it clear to the Inspector, in a way which he had understood, that the upright parts were part of the antennae, that could well have fallen within the definition. That demonstrates the degree of confusion which was caused, which could have been remedied by a simple request from the Inspector for comments upon what the objectors had to say. His failure goes further than that, because the claimants had expressly raised the upright sections as essential to obtaining the correct propagation patterns; in other words, the claimants had showed that they contributed to the function of receipt or transmission. That argument was never addressed by him in paragraph 3 of his decision letter. That, in my judgment, is surprising and in my judgment is a fatal omission from that part of his conclusions.[25]I therefore consider that his conclusions on the application of Part 24 to the design of the mast were wrong in law, and that he also failed to deal with the matter fairly. But that is not the end of the matter, because he also concluded that, because the mast was already in existence, the General Development Planning Order rights did not apply.[26]Mr Boyle submits that the fact that a mast already existed is irrelevant. He says the developer was entitled to consideration of the Part 24 application on its merits. Mr Forsdick says that to allow what occurred here to happen is to circumvent the procedures in Part 24. When I first read these papers I was attracted by the argument put forward by Mr Boyle but am now entirely satisfied that Mr Forsdick's approach is the correct one to this issue, and I am now going to set out why. The scheme of the statutory planning code is that planning permission is required for acts of development: sections 55 and 57 of the Town and Country Planning Act 1990. Planning permission can be gained even though the development already exists. There are procedures whereby a planning application is made. They allow for consultation formally under the Act and the relevant regulations in the case of landowners and some statutory undertakers, and informally but in practice universally in others, in other words in the case of neighbours. The local authority then has 8 weeks to make a decision, which may be extended. If it does not extend, if the developer has not agreed to the extension of the period, and he does not get consent, he has the right to appeal to the Secretary of State, or First Secretary of State and the appeal heard by one of his inspectors.[27]The permitted development order sets out various procedures including Part 24, whereby either deemed planning permission is given or a fasttrack procedure may be adopted. In the case of Part 24, the scheme therefore gives the developer a more streamlined system but gives the local planning authority the chance to intervene before the development goes ahead.[28]There are just some general observations about whether or not the temporal sequence in which things occur is important. Under the normal system of planning control, in other words dealing with planning applications, there is no doubt at all that planning permission may be granted after the development in question has been carried out. I note that, even in such cases, section 91 applies. It deals with the application of conditions, including the condition which requires that development must be begun not later than the expiration of a given period from the date of permission. That applies even though the development has already occurred at the time of the approval. Indeed, if there is enforcement action under Part 7, a subsequent grant of permission authorises the development being enforced against (see section 180). If an appeal is determined on enforcement action, the Secretary of State may grant permission in respect of the matter identified in the notice as constituting a breach of planning control (see section 177). Under section 174, where an appeal against an enforcement notice is brought, the appellant should be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control. It follows from the above that planning permission can be granted for an act of development occurring before the application is made, or before the permission is granted. The Town and Country Planning Act 1990 makes provision for the making of applications to develop land without compliance with conditions previously attached (that is section 73), but it makes no provision for any procedure different from an ordinary application for planning permission in the case of the retention of unauthorised operations. As already noted, section 91 applies as much to retrospective permissions as to prospective ones. It follows that control over development is not to be construed as being concerned only with future developments. What it is doing is to say instead: if one carries out an act of development which is unauthorised, then it is unlawful. It is at risk of being enforced against unless one obtains the relevant consent. If one does obtain it then it will be treated as lawful.[29]But the Act makes provision for development orders under section 59. Under section 59(2), a development order may either(a) itself grant planning permission for development specified in the order, or development of any class specified or(b) in respect of development for which planning permission is not granted by the order itself, provides for the granting of planning permission by the local planning authority, (or in the cases in the following provision by the Secretary of State) on application to the authority in accordance with the provisions of the Order.[30]Section 60 of the Act refers to subsection (1); planning permission granted by the development order may be granted either unconditionally or subject to such conditions or limitations as must be specified in the order. Under the order itself at Article 3(1):
"Planning permission is granted for the purposes of development described is permitted development in schedule 2. (2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in schedule 2."
[31]There is nothing in Article 3 which specifically applies the rights only to prospective development. But I now turn to schedule 2 Part 24, which I have recited at the beginning of the judgment. The Inspector in his decision letter relied on the provisions in Part A, sections A.3(3) A.3(7). The purpose of this procedure is to allow the local planning authority a time, but a shorter one than applies to ordinary applications for permission, to require that prior approval is required. If it is not followed it means the permitted development rights will not exist. So if the mast is or has been erected it will be an unauthorised development. In ordinary planning control (by which I mean that of normal application and permission), there is no equivalent to the steps set out in Part 24 section A.3(7).[32]I accept Mr Forsdick's submission that is because the procedure is not applicable to cases where the mast in question has been built without consent. In other words, Part 24 is a special code for dealing with electronic communications operators. Unless followed, and unless followed accurately, the usual planning control rules will apply. He draws on the familiar principle of other development within the General Development Order, whereby a development which exceed, the limit is all unlawful and must all be removed if enforced against. One has the familiar example of Simmons v Rochdale MBC [1990] 4 P & CR 432. That is the case where the General Development Order permitted the erection of a wall of up to 2 metres in height. The wall in question exceeded 2 metres in height. The enforcement notice required the removal of the entire wall because the whole wall was in breach, not just the part in excess of 2 metres. That is of course not a precise analogy because the smaller part forms part in that case of the larger unauthorised whole. But what it does show is that the General Permitted Development Order is itself a special code, within the larger statutory code of planning control.[33]That does no harm to the interest of developers because the developer is still able to apply for a planning permission. But it also maintains public confidence in that what can be controversial proposals are not built before procedures for their approval have been followed. I therefore reject the second main plank of Mr Boyle's argument.[34]It is plain from the decision letter that both reasons underlay the Inspector's decision and Mr Boyle accepted, quite properly, that he had to win on both to get the decision quashed. He won on one and lost on the other; he therefore fails.[35]Two matters happened in the case on which I should pass comment. The first is that Mr Forsdick, for the Secretary of State, flourished diagrams of antennae that he had obtained from the Internet to advance his argument, which was met by an attempt to put in evidence in rebuttal for the claimant. I well understand the thrill of the chase as an advocate and the exciting allure of the Internet. But with respect, it should not have happened. But I was also informed, right at the end of argument, that planning permission had been granted. Full planning permission had been granted for the development in question, 1 month after these proceedings were issued. I accept that it was proper to proceed with the proceedings in any event, as it was important to have the interpretation of the Part 24 of the order tested and also the Inspector's approach to the pre-existence of the mast. But I deprecate in the strongest terms the fact that the claimants entirely failed to inform the court of that matter or indeed their opponents as it was their duty to do so until the end of argument. It should have been a matter that appeared in the witness statement, which accompanied the claim in this matter. In fact the witness statement was in September, a month before the new permission was granted. Steps should then have been taken shortly thereafter to notify other parties and the court. I hope that procedure is followed in future.[36]I therefore give judgment for the defendant. (Submissions re: costs)[37]HIS HONOUR JUDGE GILBART QC: I award costs assessed in the sum of £4,824. I note that the figure is unchallenged. I accept it. The only challenge is to the principle of awarding all of the costs when Mr Boyle did not lose on both grounds. I reject that submission. He has failed to quash the decision letter. It is the usual course in these courts that, unless there are unusual circumstances, a failure to quash will result in an award of costs. Can I thank counsel for the skeleton arguments and the efficient way in which the matter was conducted.

Cited in 2 later judgments