Defendants displaying advertisement on PVC shroud attached to scaffolding surrounding large department store – Whether advertisement “incorporated into fabric of building” and thereby exempt from requiring planning permission – Council’s application for injunction preventing display of advertisement allowed – Defendants’ appeal dismissed
The first defendant was the leaseholder of a large department store situated in Knightsbridge, London. The second defendant was an advertising business which, in March 2000, made an application for an advertising display on the eastern elevation of the store. The advertisement measured 25m x 12m and was required for 12 weeks from 1 April 2000. The claimant council refused permission. Notwithstanding that refusal, the advertisement was displayed on scaffolding following advice that consent was not required. In November 2000 the claimants informed the first defendant that it would be prosecuted if the advertisement was not taken down within five days. In January 2001 an information was issued against the first and second defendants.
In March 2001, while the prosecution was pending, a second advertisement was erected on scaffolding on the northern elevation of the store. The advertisement was digitally incorporated onto a PVC sheet forming a panel, which was fixed to other panels, that together formed a shroud secured to the scaffolding by plastic tags and ropes. Pursuant to section 222 of the Local Government Act 1972 and section 187B of the Town and Country Planning Act 1990, the claimants sought a statutory injunction to prevent the display of the second advertisement on the northern frontage.
By Class D of Schedule 2 to the Town and Country Planning (Control of Advertisements) Regulations 1992, consent was not required for an advertisement incorporated into the fabric of a building, provided that the building, or any external face of it, was not used principally for the display of advertisements. Para 2 of Class D provides that: (a) an advertisement fixed to or painted on a building was not to be regarded as incorporated into its fabric; and (b) a hoarding, or similar structure, was to be regarded as a building used principally for display of advertisements. The defendants contended that the scaffolding constituted part of the building, since section 336 of the Act defined “building” as including structures and erections. On that basis, it was submitted that permission for the second advertisement was not required because the shroud was an integral part of the scaffolding, which was itself part of the building, and the advertisement was therefore incorporated into the fabric of the building. The judge held that the advertisement was not incorporated “into the fabric of a building” and was unlawfully displayed and that, in all of the circumstances, it was appropriate to grant the injunction sought.
Held: The appeal was dismissed.
There were two essential elements to “the fabric of a building”: (i) it must be part of its essential structure, which, for example, did not include fixtures and fittings; and (ii) it must have a certain degree of permanence. It would be an odd use of language to speak of the fabric of scaffolding. Scaffolding lacked at least one of those two essential elements, and accordingly the screen could not be regarded as part of the fabric of a building. The judge had been correct in granting the injunction on the basis that the advertisement had not fallen within the exemption from planning control provided for under Class D of Schedule 2 to the 1992 Regulations and that it was, accordingly, unauthorised.
Jonathan Powell (instructed by the solicitor to Kensington and Chelsea Royal London Borough Council) appeared on behalf of the claimants; Philip Coppel (instructed by Hamlins) appeared on behalf of the first and second defendants.
Thomas Elliott, barrister
