Respondent’s nightclub advertised by fly-posters — Appellant local authority prosecuting respondent under section 224 of Town and Country Planning Act 1990 — Respondent denying knowledge of posters — Burden of proof
The respondent was the director of a nightclub that was occasionally hired out to promoters. Although the terms of the hiring agreement specifically prohibited fly-posting, events at the club were regularly advertised by posters that were displayed on street furniture in the local area.
The appellants’ enforcement officer contacted the nightclub by telephone and letter to complain about the fly-posting and subsequently commenced enforcement proceedings against the respondent under section 224(3) of the Town and Country Planning Act 1990.
The respondent maintained that, until the enforcement proceedings had been commenced, he had had no knowledge of the complaint, and that the posters had been put up without his knowledge or consent, which meant so that he was not responsible for the posters within the meaning of section 224 of the 1990 Act.
At first instance, the magistrates found for the respondent on the grounds that: (i) under section 224, it was for the appellants to show that the respondent had knowledge of, or had given consent to, the placing of the posters; and (ii) since the respondent had failed to adduce evidence on that point, there was no case to answer. The appellants appealed by way of case stated.
Held: The appeal was allowed.
The question to be addressed was where the burden of proof lay under section 224 of the Town and Country Planning Act 1990: was it for the appellant to demonstrate that the respondent had knowledge of, or had given his consent to, the placing of the posters?
Section 224(4)(b) provided that a person was deemed to have displayed an advertisement if it publicised his business. A defence was provided by subsection (5) if that person could prove that the advertisement was displayed without his knowledge or consent. The burden of proving his defence therefore lay with the respondent. It was for him to adduce evidence that he had not known of, or consented to, the display of the posters, not for the appellants to adduce evidence that he had. It could not therefore be argued that the respondent had no case to answer, and the matter was therefore remitted back to the magistrates’ court.
Shaun Murphy (solicitor advocate) of Edwards Duthie appeared for the appellant; the respondent did not appear and was not represented.
Vivienne Lane, barrister
