Telephone kiosk with digital advertisement panel not permitted development

For those drawn to the subtle question of when a telephone kiosk is also a digital advertising panel, illumination has been provided in a recent case Westminster City Council v Secretary of State for Housing, Communities and Local Government and another [2019] EWHC 176 (Admin). Although the issue may appear dry, it highlights an issue of growing concern among Councils: that permitted development rights are being abused, leading to an uncontrolled encroachment of digital advertising into urban spaces.

In this case, New World Payphones Ltd ("NW") had sought to replace two existing telephone boxes with a single kiosk containing a digital advertisement panel. As a part of the application NW applied for prior approval under Class A, Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 ("GPDO"), which was granted on appeal. This decision was challenged by Westminster City Council in a case heard in the High Court, heard on 5th February 2019.

The key finding of the court was that where prior approval is sought, the whole development must fall within the Use Class relied on. In this case, the proposed use of the kiosk was not simply 'for a development by or on behalf of an electronic communications code operator for the purpose of the operator's electronic communications network' (which would have allowed it to take advantage of the GPDO). Rather, the application was actually for a combined telephone kiosk and advertisement display. As the advertising use was neither ancillary nor incidental, it didn't matter that the dominant purpose of the structure was to create a telephone kiosk: it was still partly an application for an advertising structure. As such it fell outside the scope of Class A of Part 16 of the GPDO and permitted development rights could not be relied upon. On this basis, the decision to grant permission was quashed.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.