Contributors
This briefing note summarises the technical consultation's proposals and it does not constitute legal advice. For further information on any of the matters referred to in this briefing or the consultation please do not hesitate to contact us, or your usual Womble Bond Dickinson contact.
Background
Ensuring the wide availability of high-speed broadband and mobile infrastructure is a central part of the Government’s National Infrastructure Strategy and "levelling up" agenda. The Government has a target that at least 85% of the UK will have a gigabit-capable broadband connection available by 2025 and that most of the population has access to a 5G signal by 2027.
To install infrastructure, telecoms operators may require, in summary, planning permission; and an access agreement with the landowner/occupier to use the land (such as a wayleave or a lease). Access agreements are not covered further by this briefing.
Telecommunications is a reserved power but planning and building regulations are devolved responsibilities; this means that the rules on access agreements apply UK-wide but planning rules vary slightly in each nation. Guidelines for the siting and appearance of mobile infrastructure in England are provided in the 'Code of Best Practice on Mobile Network Development in England (November 2016)'. The Code of Best Practice also covers expectations for community consultation regarding mobile infrastructure.
However, designated communications network operators[1] have certain permitted development (PD) rights. This means designated operators can build certain infrastructure without having to apply for full planning permission from the local planning authority (LPA). For some telecoms infrastructure, "prior approval" from the LPA is required for the siting and appearance of the development, but not the principle of its installation.
A full application for planning permission would be required for any infrastructure that does not fall within the PD criteria that is set out in legislation, and which may vary slightly between the devolved administrations. Any full application for planning permission would require a public consultation before being decided.
In England, the National Planning Policy Framework (NPPF) states that planning policies should support the expansion of electronic communications networks. The NPPF is a material consideration in planning decisions.
Interested parties with concerns about the development of telecoms infrastructure and related rights should approach their LPA.
Previous consultations
PD rights derive from a general planning permission granted by Parliament by means of a development order[2] (the GPDO). However, the general planning permission granted by the development order may be subject to conditions and restrictions and may also be subject to a "prior approval" process by the LPA as specified in the GDPO.
In August 2019, the Government opened a consultation on changes to the PD rights for the installation, alteration and replacement of electronic communications infrastructure, to aid efficient roll-out of 5G and extend mobile coverage in England. The changes proposed were, in summary to:
- allow radio equipment housing on land, without prior approval, up to specific limited and excluding sites of special scientific interest (SSSI), to support 5G deployment
- allow existing masts to be widened up to specified limits, without prior approval, to enable sites to be upgraded for 5G and for mast sharing
- allow building-based masts nearer to highways subject to prior approval and specified limits, to support deployment of 5G and extend mobile coverage
- allow higher new masts, subject to prior approval and specified limits, to encourage the development of taller but fewer masts.
Any changes would apply to all mobile infrastructure in England, not just 5G.
While the Government’s response to the consultation in July 2020 confirmed the intention to bring forward the in-principle proposals, it stated that it would do so subject to a further technical consultation and acknowledged that the benefits of improved connectivity need to be balanced with local control and environmental protections.
Proposed changes to the regulations conferring PD rights
The current further technical consultation[3] relates to the detail of the proposed reforms, and seeks views on the proposed amendments for PD rights for operators with rights under the Electronic Communications Code to install and maintain electronic communications apparatus. The consultation period closes on 14 June 2021.
Secondary legislation will be required to implement any proposed changes to the GPDO and the proposed changes will apply to England only.
Further detail of the proposed changes is set out below.
Radio equipment housing
To enable deployment of radio equipment housing, single developments of small radio equipment housing would be permitted without the need for prior approval, in all areas except land on or within SSSI. Single developments of larger equipment housing would be subject to prior approval.
To give greater flexibility for installing equipment cabinets in existing compounds it is proposed to disapply restrictions on singular development and cumulative permitted development of radio equipment housing where these are located in an enclosed compound (of up to100m2), subject to restrictions ensuring that new equipment does not have an adverse visual impact on the local area.
The consultation proposes to remove the requirement for prior approval for any single development of equipment housing up to 2.5 cubic metres on Article 2(3) land[4]. It also proposes that any single development of equipment housing on Article 2(3) land that exceeds 2.5 cubic metres is permitted subject to prior approval. This is to ensure that the siting and design of larger equipment housing is still subject to consideration by the LPA.
The consultation states if the PD right is amended then new conditions (i.e. restrictions) would also be required to ensure that new equipment housing does not have an adverse visual impact on the local area. The proposed options for new conditions, in the alternative, are that:
- the development does not 'materially affect' the external appearance of the premises or exceed a certain height above ground level
- the perimeter fencing should not be open (i.e. should be closed boarded) and the equipment housing being deployed should be no higher than the existing fence; or
- fencing no higher than existing.
The consultation states that comments on what measures would be most appropriate to mitigate visual impact would be particularly welcome.
Strengthening existing ground-based masts
The consultations states that to upgrade sites to support both 4G and 5G infrastructure and to extend network coverage, existing ground-based masts will need to be strengthened and increased in height to accommodate additional equipment and enable greater sharing of infrastructure between operators.
Under the GDPO the alteration or replacement of existing ground-based masts is permitted currently up to certain specified limits and subject to conditions and beyond the limitations or to make changes to the height of an existing mast located on or within a SSSI, an application for full planning permission is required.
Width of existing ground-based masts
For the alteration or replacement that is less than one metre wide it is proposed that alteration or replacement that increases the width by up to two-thirds would be permitted without prior approval. Increases to the width greater than two-thirds would be permitted subject to prior approval. This would apply on all land including Article 2(3) land, and land on a highway but excluding SSSI land.
For the alteration or replacement of existing ground-based masts one metre or more than a metre in width the Government is consulting on two options.
To permit increases in width, without the need for prior approval:
- up to one-half or two metres (whichever is greater) on all land (including Article 2(3) land and land on a highway) but excluding SSSI land
or
- up to one third or one metre (whichever is greater) on Article 2(3) land and on land on a highway (but excluding SSSI land).
Increases in width greater than those specified above would be permitted subject to prior approval.
Height of existing ground-based masts
For the alteration or replacement of an existing ground-based mast, the consultation proposes that increases in the height would be permitted, on Article 2(3) land or land on a highway as follows:
- up to 25 metres above ground level, subject to prior approval
- up to 20 metres or the height of the existing mast if taller, without prior approval.
On all other land (excluding SSSI land) the consultation proposes that increases in the height would be permitted as follows:
- up to a height of 25 metres, or up to the height of the existing mast (if taller), without prior approval
- over 25 metres and up to a new height of 30 metres, subject to prior approval.
Building-based masts
The consultation states that the Government is committed to make it easier to deploy building-based masts nearer to highways, subject to prior approval. Proposed changes are intended to support the roll out of 5G and extend mobile coverage using existing structures.
The consultation proposes the following changes, on land outside of Article 2(3) land and land on or within SSSIs:
- permit the installation, alteration or replacement of masts up to 10 metres in height above the tallest part of the building within 20 metres of the highway, on buildings less than 15 metres in height, subject to prior approval
- subject to measures to mitigate visual impact permit the installation, alteration or replacement of masts up to 6 metres in height above the tallest part of the building, without the need for prior approval.
The consultations states that other existing limits to the location and heights of masts, and number of antenna, that can be deployed on buildings would remain.
New ground-based masts
The proposal is to permit new ground-based masts, subject to prior approval, up to the following heights:
- up to 25 metres in height, on Article 2(3) land or land on a highway
- up to 30 metres in height, on all other land (excluding SSSI land).
In addition, the Government is considering permitting the installation of monopoles up to 15 metres in height without the need for prior approval (except on Article 2(3) land and land on or within SSSI).
Safeguarding
The Government propose to introduce a new prior notification procedure relating to safeguarded areas, and to require prior approval for proposed mast developments in proximity to a defence asset.
In order to ensure the safe operation of defence sites, civil aerodromes and technical sites, the Government propose to amend the GDPO to include a prior notification procedure for all development relating to masts within official safeguarded areas. The consultation states that the new notification procedure would apply, both in instances where prior approval of the LPA is required, and where prior approval is not required.
In the case of the installation, alteration or replacement of a mast on land within a safeguarding area identified on a safeguarding map relating to a defence asset, then the prior approval of the LPA would always be required.
Small cell systems
The Government proposes to update the definition of 'small cell system' within the GPDO to ensure that it encompasses new and emerging types of small cell technology. The revised definition would define 'small cell system' with reference to the power levels at which they operate, typically power levels of 10 Watts and below.
Next steps
The consultation closes at 11:45pm on Monday 14 June 2021.
Subject to consultation responses, the Government will prepare regulations to amend the GDPO to be laid in due course.
In addition the consultation contains confirmation that the Government is working to update the non-statutory Code of Best Practice on Mobile Network Development in England, a process led by the Department for Digital, Culture, Media and Sport.
The consultation does not seek views on this separate process, but notes that in revising the Code of Practice a stronger focus will be placed on the siting and design of new infrastructure. Government also expects all Mobile network Operators will sign up to the Code.
This briefing is attributed to Amber Collins, Paralegal.
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[1] The rights only apply to network operators licenced under the Electronic Communications Code following a public consultation by Ofcom.
[2] The Town and Country Planning (General Permitted Development) (England) Order 2015 SI 2015/596 (as amended) (the GDPO).
[3] https://www.gov.uk/government/consultations/changes-to-permitted-development-rights-for-electronic-communications-infrastructure-technical-consultation
[4] GDPO Article 2(3) and Schedule 1 means land within a designated conservation area, an area of outstanding natural beauty, an area specified under the Wildlife and Countryside Act 1981 (enhancement and protection of the natural beauty and amenity of the countryside), the Broads, a National Park and a World Heritage Site.
