Council prosecuting hotel operator for placing unauthorised freestanding blackboard on pavement showing menu for the day – Defendant doing so since 1986 – Whether prosecution subject to 10-year limitation period applicable to breaches of planning control
Commencing in 1986, the respondent owners of the Riversford Hotel had displayed an advertising board on the pavement of the main road between Bideford and Westward Ho! The advertisement took the form of a 2 ft x 2 ft blackboard which was positioned on the pavement at certain hours each day and carried handwritten details of lunches and other special menus on offer. In December 1997 the appellant council laid an information in the Devon Magistrates’ Court alleging that the respondent had contravened section 224(3) of the Town and Country Planning Act 1990 by displaying an advertisement without obtaining the consent of the local planning authority, as required by regulation 5 of the Town and Country Planning (Control of Advertisements) Regulations 1992.
The magistrates acquitted the respondents after accepting their contention that they had a good defence under section 171B(3) of the 1990 Act, which provides that “In the case of any breach [other than those previously specified] of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach”. The council appealed by way of case stated to the divisional court, contending that section 171 had no application to the control of unauthorised advertisements unless the case fell within section 55(5) (display on external wall not normally used for advertising purposes).
Held Appeal allowed with direction to convict.
1. Unless involving a material change of use, the display of an advertisement contrary to the 1992 regulations was not enforceable by the machinery of enforcement notices, stop notices, and injunctions provided for by Part VII of the 1990 Act. By section 224 of the 1990 Act the Secretary of State for the Environment had power to make regulations which applied or adapted the provisions of Part VII but, since that power had not been exercised, it could be inferred that the enforcement of the advertising regulations, where no breach of planning control had occurred, should be limited to the penal sanction provided for by that section, which was to be found in Part VIII. Because Parts VII and VIII laid down quite separate codes of enforcement, the section 171 limitation period had no application to the magistrates’ court proceedings taken by the council.
2. In the light of the above ruling it was inappropriate to express a view on the council’s alternative contention (partly based on Kingston upon Thames Royal London Borough Council v National Solus Sites Ltd (1993) 158 JP 70) that a fresh offence was committed on each occasion when the defendants changed the message on the board.
Timothy Corner (instructed Bazeley Barnes & Bazeley, of Bideford) appeared for the appellant council; the respondent did not appear and was not represented.
