The Court of Appeal upheld the decision of Sullivan J at first instance. In doing so it rejected the argument, made on the claimant / appellant’s behalf following the decision of Richards J in Phillips v FSS  EWHC 2415 (Admin), that there was an obligation on mobile phone providers seeking planning permission for construction of telecommunications equipment to show that they had, or would have, failed to secure any preferable alternative site by use of their Electronic Communications Code powers of compulsory acquisition of rights over land.
Rejecting that submission, Pill LJ, giving the lead judgment stated:I would not accept the submission … that an applicant must either go to the County Court and fail on a meritorious alternative site, of which there may be more than one, or must satisfy the planning authority that he would fail if he did so. In my judgment there is no such duty on an applicant.
To similar effect Laws LJ stated that: [the Claimant’s] argument entails or at least suggests the proposition that if the County Court has not been resorted to, the Inspector on an appeal such as that launched by Orange should second-guess what the County Court might have done. That is a position which would lack both principle and practicability.
Leave to appeal to the House of Lords was refused by the Court of Appeal, and a subsequent petition to the House of Lords was also refused.
The 1st Secretary of State was represented by Tim Mould at first instance and above. Christopher Katkowski QC and Tim Buley acted for Orange in the Court of Appeal.