UKTC Archive

RE: mobile phone mast versus NPPF

Subject: RE: mobile phone mast versus NPPF
From: Alastair Durkin
Date: Jun 03 2020 08:37:42
Ok, this has turned into a bit of a rabbit hole. 

Several things to consider:

1. If they are "an operator to whom the telecommunications code (set out in 
Schedule 2 to the Telecommunications Act 1984(7)) applies", then they are a 
statutory undertaker. That would be a matter of fact.

2. The exception under Regulation 14 does not allow for the wilful damage or 
destruction of a TPO tree. So for example, trenching or excavating near a TPO 
tree when they could trench somewhere else MIGHT be an offence (Barnet LBD v 
Eastern Electricity Board).

3. 'Operational Land' is defined within the TCPA 1990 (copied below). It is 
important not to miss (2), which basically says that if this land is just 
like any other land, save for the presence of a cable or such like (I got 
this from Mynors), then that is not operational land. In this instance, 
however, I would argue (1)(b) probably applies, insofar as they are likely to 
hold an interest in this land for the purposes of their undertaking.

263
Meaning of “operational land”.
(1) Subject to the following provisions of this section and to section 264, 
in this Act“operational land” means, in relation to statutory undertakers—
(a) land which is used for the purpose of carrying on their undertaking; and
(b) land in which an interest is held for that purpose.
(2) Paragraphs (a) and (b) of subsection (1) do not include land which, in 
respect of its nature and situation, is comparable rather with land in 
general than with land which is used, or in which interests are held, for the 
purpose of the carrying on of statutory undertakings.

4. If there is any argument as to the meaning of operational land in any 
particular context then apparently it needs to be sorted out by the relevant 
Minister, so good luck with that!

5. I'm pretty sure this comes under Permitted Development (see below): 

PART 24
DEVELOPMENT BY TELECOMMUNICATIONS CODE SYSTEM OPERATORS
Class A

A.    Permitted development

Development by or on behalf of a telecommunications code system operator for 
the purpose of the operator’s telecommunication system in, on, over or under 
land controlled by that operator or in accordance with his licence, 
consisting of— 

(a) the installation, alteration or replacement of any telecommunication 
apparatus,

 

Hope that helps a bit.

Alastair

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Kevin Slezacek
Sent: 02 June 2020 22:16
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: mobile phone mast versus NPPF

I think we need to be careful here with the interpretation and meaning of 
permitted development. Permitted development in planning terms is very 
different from the works Anthony describes. PD rights can be removed by the 
LPA and often are on new builds or buildings in CA. Under PD you can build an 
extension of a certain size without planning permission. Building regs still 
apply. You can create a hard standing driveway again upto a certain size. 
What Anthony is talking about is works carried out by statutory undertaking 
which are exempt from TPO legislation. Yes most people say we are doing this 
under permitted development all they actually mean is they can do what they 
need to without any application. As I stated earlier if the tree is not 
within the red line area (operational area) then the utility/ communications 
company still have a duty not to damage third party property. If however the 
tree is within their operational land then a TPO would be a consideration but 
if it interfered with their work then it could be removed without any need 
for consultation. I doubt it would be deemed expedient for an LPA to TPO a 
tree within a SU land.
Njug volume 4 Issue 2 and BS are best practice documents and there is 
specific mention of ASNW and veterans in there and their importance. It seems 
we all agree that entering into dialogue with the company and perhaps LPA is 
best course of action.

Sent from Outlook Mobile<https://aka.ms/blhgte>

________________________________
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
on behalf of Ben Oates <b.oates@xxxxxxxx.co.uk>
Sent: Tuesday, June 2, 2020 5:23:06 PM
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: mobile phone mast versus NPPF

Hi Anthony,
I also agree with what has been said but I'd like to add weight to Charles's 
point about contacting the council Tree Officer to request a TPO. Permitted 
development does not override a TPO. If you explain the circumstances and the 
importance of the tree, I'm sure the TO would be supportive. If worthy, make 
sure the TO serves it on the telecom company with a cover letter highlighting 
that wilful damage to the tree, its roots or rooting environment may lead to 
prosecution and advising them to seek expert arboriculture advice on its 
protection during mast installation.
Best of luck.
Ben Oates
Quaife Woodlands



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