Telephone kiosks as advertising hoardings

The Chelsea Society opposes advertising hoardings masquerading as telephone kiosks.

We are pleased to see that three appeals for kiosks on the Kings Road have been dismissed by the Planning Inspectorate:

Appeal E 49 Kings Road
28. The advertisement would be located outside a fast food restaurant, albeit that this has small scale frontage elements, on a busy stretch of King’s Road with a
streetscene which is pleasing and has some sense of intimacy despite being a main thoroughfare. However the main defining factors visually of this
immediate area stem from the adjacent right angles Royal Avenue which is an extremely attractive open and green swathe of land almost alongside the
appeal site. The ‘natural’ or undeveloped appearance of this avenue provides a radiating ambiance which should be protected and kerb side street trees
continue this sense of an attractive environment at ground level with its own characteristics which are entirely at ease in visual terms and logically form part
of a Conservation Area.

29. In this context I would assess that a sizeable illuminated advertisement placed at right angles to the flow of pedestrians and vehicles would be incongruous
and unacceptably visually harmful to the amenity of the streetscene and would run contrary to the objectives of S.72 of the Act.

30. On the matter of safety and obstruction of pedestrians and other footway users, the advertisement would narrow the width available to below the Council
policy objective of 4 metres. The interruption and reduction below this figure would be appreciable and I share the Council’s view that this would intrude
upon safe and convenient passage in what is a busy locale with significant footfall.

31. Given the above I conclude that Appeal E should be dismissed.

Appeal F 152 Kings Road
32. This stretch of Kings Road is more ‘low key’ in character than many other parts of the road with shop fronts generally being restrained and mature trees
dominant. The rather intimate area has little in the way of sizeable advertising or extraneous light sources. The ambiance is pleasing and the aesthetic
qualities stem from an air of tradition not modernity. 33. In this context a sizeable illuminated advertisement placed at right angles to  the flow of pedestrians and vehicles would be would be jarring on the eye and very out of tune with, and damaging to, the visual amenity of the area. Appeal F is therefore dismissed.

Appeal G 436 Kings Road
34. This is an area of King’s Road with generally small scale commercial premises usually with subtle detailing and low key associated advertisements. There is
a leafy feel along this stretch and a pleasing streetscene. Flats above shops are only on two floors. Close to the south west the road becomes almost wholly residential in character and this transitional length where the proposal would be sited has a very low key and human scale to its character. There is very little evidence of sizeable advertising and the environment is traditional in
almost all senses.

35. The charm of the locality makes it not all surprising that it is part of a Conservation Area.

36. Given this backdrop, the incongruity of a sizeable illuminated advertisement placed at right angles to the flow of pedestrians and vehicles would be very tangible. The proposal would be unacceptably visually harmful to the amenity of the streetscene and would run contrary to the objectives of S.72 of the Act. Appeal G is therefore dismissed.

 

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The High Court has quashed a planning inspector’s consent for a new telephone kiosk in central London, ruling that such structures served a ‘dual purpose’ of both communications and advertising and therefore should not benefit from permitted development (PD) rights. 

Westminster City Council v Secretary of State for Housing, Communities and Local Government. Case Number: CO/3111/2018

In future therefore, planning permission will be needed, and the Chelsea Society has urged RBKC to use its powers to prevent a proliferation of these advertising hoardings.

New World Payphones Limited runs a network of over 2,000 phone kiosks around the country, with over 200 in the City of Westminster alone.

It has a rolling programme of replacing old-style telephone boxes with open structures that offer LCD interactive screens and Wi-Fi internet access.

Advertising displays on the back of its kiosks are essential to finance them and, without them, no new kiosks would be installed, the company says.

New World argued that formal planning permission was not required to replace two old phone boxes outside 25-27 Marylebone Road with a single new kiosk.

As an electronic communications network operator, it argued that the development fell within the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO).

Westminster City Council refused to grant prior approval under the GPDO for the kiosk’s installation, but that decision was overturned, and approval granted, by a planning inspector in June last year.

Challenging that decision in court, the council argued that the “primary purpose” of the kiosk was not as part of a telecommunications network, but for advertising in the form of an illuminated digital panel.

The council contended that, with the advent of mobile phones, the public nowadays make little or no use of telephone kiosks for telecommunications and that their principal objective is to display advertisements.

However, neither the council’s arguments in respect of public “need” for the kiosk, nor in respect of its primary purpose, were decisive in Mr Justice Ouseley’s decision to quash the inspector’s decision.

The judge noted that a development only falls within the scope of the relevant class of the GPDO if it is “for the purpose” of a telecommunications network.

In order to benefit from PD rights, the kiosk had to fall “fully” and “squarely” within that class.

And, because the kiosk was for the “dual purpose” of communications and advertising, the council was right to find that it did not fall within the GPDO.

The judge said: “I do not consider that the evidence here could permit of any conclusion other than that the kiosk served a dual purpose.

“Part of its purpose was for the operator’s network, as a telephone kiosk. Part of it was to be the electrified advertising panel.

“The panel was for the purpose of displaying advertisements. It was not ancillary or incidental to the kiosk, nor legally insignificant.”

He added: “A development which is partly ‘for the purpose’ of the operator’s network, and partly for some other purpose, is not a development ‘for the purpose’ of the operator’s network, precisely because it is for something else as well.

“The single dual-purpose development must be judged as a whole.”

The questions of whether telecommunications, or advertising, was the “dominant or primary purpose” of the kiosk – or whether there was a real public need for the kiosk – were therefore of limited relevance.

Discerning the main purpose of developments posed obvious uncertainties and evidential difficulties, and the judge added: “The language of the GPDO is not that of dominant or primary purpose.”

“The kiosk cannot be brought within the scope of prior approval … merely because it is acceptable in the street scene. The kiosk would fall outside the scope (of the GPDO) if advertising consent were granted, since its dual purpose would be apparent daily.”

New World’s lawyers pointed out that consent for installation of the advertising panel had in fact been refused. However, the judge said the company’s bid for prior approval had to be “determined upon the application”, rather than “by the outcome of the prior approval process”.

The inspector’s decision to grant prior approval for the kiosk was quashed.

Saira Kabir Sheikh QC of Francis Taylor Building, who acted on behalf of Westminster City Council, said the judgment “clarifies the position with respect to the development of telephone boxes which include advertising capabilities”.

“Moving forward, such development should not benefit from permitted development rights, on the basis that it serves a dual purpose,” she said.

“This is significant not only for the telecommunications industry, but also for local planning authorities who have been grappling with an increase in applications of this type in recent years.”

London councils, including Westminster, have lobbied central government to review permitted development rights for telephone kiosks that they say are leading to a plethora of unsightly advertising.

In October, the government published a consultation on the removal of permitted development rights for phone boxes to allow “greater consideration of their impact on local amenity”. Advertising on new phone boxes would also be subject to planning approval, under the proposals.

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