Recently, the government announced a consultation on proposals to reform permitted development rights (PD rights) for operators under the Electronic Communications Code (Code Operators). The aim of the proposals is to support 5G technology and extend mobile coverage. Four new PD rights are proposed, two of which would require prior approval from the local planning authority (LPA), two of which would not. Bearing in mind the infrastructure that will be needed for greater mobile coverage and to get ready for 5G, and considering the potential impact on them of the proposed rights, landowners and developers should consider taking the opportunity to respond to the consultation.

The PD rights proposed are to enable the deployment of radio housing equipment on land (apart from on Sites of Scientific Interest) and the strengthening of existing masts for 5G upgrades and mast sharing. These rights would not require “prior approval” from the LPA, which means that the LPA would not need to be notified before the rights are implemented by Code Operators and will not therefore have an opportunity to take into account the interests of other parties such as landowners, occupiers or neighbours. PD rights are also proposed for the deployment of “building-based” masts nearer to highways, and higher masts for for better mobile coverage and mast sharing, although both of these rights would require prior approval.

A recent decision reminds landowners that they can face a tough test when trying to resist the imposition of Electronic Communications Code rights in favour of operators. In EE Ltd v Chichester [2019] UKUT 164, where a landowner tried to resist the imposition of the Code by a mobile phone network operator by claiming that they wanted to redevelop the land on which a mast stood, the Upper Tribunal (Lands Chamber) confirmed that a landowner had to demonstrate “both that they have a reasonable prospect of being able to carry out their redevelopment project and that they have a firm, settled and unconditional intention to do so”. Landowners will have even less control over their land if the proposed PD rights are progressed. However, some comfort may be gained from another recent decision, Mawbey v Cornerstone Telecommunications Infrastructure [2019] EWCA Civ 1016, where the Court of Appeal discussed whether or not a central support pole was a “radio mast” – in this case, it was decided that such poles were indeed masts and that they therefore did not have the benefit of PD rights.

The government says that they will consider responses to this consultation and that another consultation on more detailed proposals wil be held in due course.