Estate agents’ boards — Town and country planning — Control of advertisements — Whether an estate agent, instructed to sell or let a residential property, commits an offence if, after he has lawfully displayed a board outside a property, another agent, with or without the former’s knowledge, thereafter displays a second board — House of Lords reverses decision of Queen’s Bench Divisional Court and holds that no offence is committed by the first agent in these circumstances — ‘The courts should surely be slow to impute to Parliament so harsh an intention as to impose criminal liability on a citizen acting lawfully because another citizen, over whom he has no control, acts unlawfully’ — Argument not presented to the divisional court now accepted by House of Lords
estate agent had been charged under two informations laid by the respondent,
who was acting on behalf of the local authority, in respect of two different
houses — In each case, after the appellant had placed a sale board on the
property in question, other agents (different agents in each case) placed a
second board on it without his knowledge — All the agents were charged with an
offence under the Town and Country Planning (Control of Advertisements)
Regulations 1984 — The other agents each pleaded guilty and were fined £100 in
respect of each information — The appellant pleaded not guilty but was found
guilty and was fined £200 on each information — He appealed to the divisional
court, who dismissed his appeal but granted a public interest certificate
without giving leave to appeal — The appellant, however, obtained leave and
brought the present appeal to the House
Griffiths in his speech referred to the relevant legislation and in particular
to the critical para (a) of Class III of regulation 14(1) of the 1984
regulations, which gave a deemed planning consent to advertisements relating to
the sale or letting of the land on which they were displayed, ‘limited, in
respect of each sale or letting, to one advertisement consisting of a board’,
or of two conjoined boards, of a certain size — Lord Griffiths pointed to
anomalies, as well as the apparent injustice, of the construction which the
divisional court felt constrained to give to the relevant regulations — He
considered that the regulations only made sense and did justice if they were
read as continuing the deemed consent for the display of the first board
despite the unlawful display of subsequent boards — The contrary view of the
local authority was that if there were two advertisements in respect of the
same sale there was no deemed consent in respect of either of them — Lord
Griffiths wished to read para (a) as if after the words ‘one advertisement’
there were added ‘that being the first advertisement displayed when more than
one is displayed’ — He rejected the suggestion that there would be great
difficulty in proving which board was erected first — He also rejected an
argument based on a new definition of Class III (a) in amending 1987 regulations;
he would read the amended regulations subject to the same implication as
mentioned above — Appeal allowed
The following
case is referred to in this report.
Porter v Honey [1988] 2 All ER 449; [1988] 1 EGLR 202; [1988] 2 PLR
108; [1988] 17 EG 129
This was an
appeal by Mr Anthony Harold Porter, estate agent, from the decision of the
Queen’s Bench Divisional Court (reported at [1988] 1 EGLR 202; [1988] 2 PLR
108; [1988] 17 EG 129) dismissing his appeal by case stated from Richmond
justices, who had found him guilty of the unlawful display of a ‘for sale’
board. The information had been laid by the chief executive of the London
Borough of Richmond upon Thames, Michael John Honey, the present respondent.
Frederic
Reynold QC and Terence Bergin (instructed by Axelrods, of Richmond) appeared on
behalf of the appellant; David Lamming (instructed by the solicitor to the
council, London Borough of Richmond upon Thames) represented the respondent.
In his speech,
LORD GRIFFITHS said: The certified question to be answered in this
appeal is in the following form:
If an estate
agent, instructed to sell or let a residential property, displays a board
outside the property no other being at that time displayed, does he commit an
offence if another agent (to his knowledge or without it) thereafter displays a
second?
In other words,
the question for your lordships is whether on the true construction of the
relevant legislation an estate agent who lawfully places a ‘for sale’ board on
a property should be held to have committed a criminal offence because another
estate agent unlawfully and without the knowledge or consent of the first
estate agent places a second ‘for sale’ board upon the same property. I suggest
that any layman would not hesitate to answer ‘no; Parliament cannot have
intended such an unjust and absurd result’. Unfortunately, the legislation
poses a more difficult problem of construction for the lawyer which is raised
by the following facts.
The appellant
is an estate agent who, after receiving instructions to sell two properties in
Richmond, displayed a ‘for sale’ board outside 18 The Vineyard, Richmond, in
November 1986 and another ‘for sale’ board outside 25-28 The Hermitage,
Richmond, in January 1987. In the case of each property the appellant’s boards were
the first to be displayed. Thereafter the owners of the properties each
instructed a second estate agent and these estate agents erected their own
boards on the properties without the knowledge or consent of the appellant.
On February 23
1987 the respondent, acting on behalf of the local authority, laid informations
relating to each house against the appellant and against the other two estate
agents. Each information charged the offence in the following terms:
did . . .
display an advertisement, namely an estate agents ‘sale’ board being one of two
such boards displayed at the said premises without consent having been granted
in that behalf in accordance with regulation 6 of the Town and Country Planning
(Control of Advertisements) Regulations 1984 (SI 1984 no 421) contrary to
regulation 8 of the said regulations and section 109(2) of the Town and Country
Planning Act 1971.
The other two
estate agents who had erected their signs after the appellant each pleaded
guilty and were fined £100 in respect of each information. The appellant
pleaded not guilty, but was found guilty by the magistrates, who imposed a fine
of £200 in respect of each information upon him.
The appellant
appealed by way of case stated to the Divisional Court [1988] 2 All ER 449*,
who dismissed the appeal. Before the Divisional Court the appellant submitted
two arguments: first, that the regulations permitted one board per advertiser
and not one board per house; this construction was rejected by the Divisional
Court and has not been pursued before your lordships; second, that, upon the
assumption that only one advertisement is permitted per sale or letting, no
offence is committed unless it is proved that the defendant knew that two
boards were displayed on the premises; this construction was also rejected by
the Divisional Court and it, too, has not been pursued. The argument upon which
the appellant now relies was not presented to the Divisional Court, although it
was referred to in passing by Bingham LJ, who said at p 453:
It was not argued
(I think rightly) that a first board erected with deemed consent continues to
enjoy that deemed consent even after the erection of a second board if the
second board was erected without deemed consent.
*Editor’s
note: Also reported at [1988] 1 EGLR 202; [1988] 2 PLR 108; [1988] 17 EG 129.
It is now
necessary to set out the relevant legislation which I take from the judgment of
Bingham LJ, at pp 450-451:
Section 63 of
the Acts of 1971 provides for regulations to be made ‘for restricting or
regulating the display of advertisements so far as appears to the Secretary of
State to be expedient in the interests of amenity or public safety’. Such
regulations may provide ‘for requiring the consent of the local planning
authority to be obtained for the display of advertisements’ (section 63(2)(b)).
The offence
of which the appellant was convicted was created by section 109(2) of the Act:
‘Without
prejudice to any provisions included in regulations made under section 63 of
this Act by virtue of subsection (1) of this section, if any person displays an
advertisement in contravention of provisions of the regulations he shall be
guilty of an offence and liable on summary conviction to a fine of such amount
as may be prescribed by the regulations, not exceeding level 3 on the standard
scale and, in the case of a continuing offence, £40 for each day during which
the offence continues after conviction.’
Regulation 8
of the Town and Country Planning (Control of Advertisements)
Regulations
1984 increased the maximum penalty on contravention.
Section
109(3) of the Act is also important:
‘For the
purposes of subsection (2) of this section, and without prejudice to the
generality thereof, a person shall be deemed to display an advertisement if — (a)
the advertisement is displayed on land of which he is the owner or occupier; or
(b) the advertisement gives publicity to his goods, trade, business or
other concerns: Provided that a person shall not be guilty of an offence under
that subsection by reason only that an advertisement is displayed on land of
which he is the owner or occupier, or that his goods, trade, business or other
concerns are given publicity by the advertisement, if he proves that it was
displayed without his knowledge or consent.’
The heart of
the problem before this court lies in the Regulations of 1984. Regulation 6(1),
(2) and (3), so far as relevant, provides:
‘(1) No advertisement may be displayed without
consent granted by the local planning authority or by the Secretary of State on
an application in that behalf (referred to in these regulations as ‘express
consent’), or deemed to be granted under paragraph (2) below. (2) Consent shall
be deemed to be granted for the display of any advertisement displayed in
accordance with any provisions of these regulations whereby advertisements of
that description may be displayed without express consent . . . (3) In so far
as the nature of the consent permits, consent for the display of advertisements
shall enure for the benefit of the site to which the consent relates and of all
persons for the time being interested in that site . . .’
No express
consent was in this case sought or given, so one must inquire whether under the
Regulations of 1984 consent is to be deemed to have been granted. Regulation 14
specifies the classes of advertisements which may be displayed without express
consent. Only one class is relevant. This is Class III, headed ‘Certain
advertisements of a temporary nature’. Para (a) reads:
‘Advertisements
relating to the sale or letting of the land on which they are displayed;
limited, in respect of each such sale or letting, to one advertisement
consisting of a board (whether or not attached to a building) not exceeding two
square metres in area, or of two conjoined boards, together not exceeding 2.3
square metres in area . . .’
Paras (b)
and (c), dealing with sales of goods or livestock and building works,
contain a similar limitation to one advertisement. Paras (d) and (e),
dealing with the certain local events, specify a maximum area of advertisement
only.
Now the first
feature of this legislation to which I would draw attention is that Parliament
did not wish a person to be convicted of an offence if an advertisement were
displayed on his land or giving him publicity when it was displayed without his
knowledge or consent: see the proviso to section 109(3). It is true that the
burden of proving this defence is placed upon the defendant, but it should not
be difficult to discharge in a genuine case. It would therefore seem unlikely
that Parliament would have intended to create an offence of strict liability in
relation to advertisements without giving an opportunity to the advertiser to
escape liability by proving that he was blameless — but such is the effect of
the regulations as they have so far been construed.
Let me
demonstrate one extraordinary result that would follow from this construction.
As is well known, there are companies that specialise in the erection of sale
boards. Let us suppose that such a company mistakenly places a sale board on
property A which estate agent X has instructed them to place on property B. Let
it also be assumed that at the time the board was erected the sale board of
another estate agent Y was already in place on property A and had been placed
there with deemed consent pursuant to the regulations. The local authority then
prosecutes both estate agents because there are two boards displayed on the
property. Estate agent X escapes conviction because he proves that his board
had been erected on property A without his knowledge and consent. But estate
agent Y is convicted because his board was erected with his knowledge and
consent and he cannot take advantage of the mistaken erection of the second
board. So X is protected from conviction by the mistake of his agent but that
same mistake makes Y guilty of a criminal offence.
The difficulty
of construction is created by the fact that in regulation 14 Class III(a)
limits the deemed consent in respect of each sale or letting to one
advertisement. The local authority therefore argues that if there are two
advertisements in respect of the same sale there is no deemed consent in
respect of either of them. However, in my view these regulations only make
sense and do justice if they are read as continuing the deemed consent for the
display of the first board despite the unlawful display of subsequent boards. I
would therefore, as a matter of necessary implication, read para (a) of
Class III as if it contained the following italicised words:
(a) Advertisements relating to the sale or
letting of the land on which they are displayed; limited, in respect of each
such sale or letting, to one advertisement that being the first
advertisement displayed when more than one is displayed consisting of a
board (whether or not attached to a building) not exceeding two square metres
in area, or of two conjoined boards, together not exceeding 2.3 square metres
in area; no such advertisement, when displayed on a building, to project
further than one metre from the face of the building.
It was
submitted on behalf of the local authority that such a construction would raise
grave practical difficulties in enforcing the legislation because of the
difficulty of proving which board was erected first. I appreciate the effort
that will be required of local authorities to enforce these regulations and
thus to reduce the unsightly proliferation of estate agents’ boards that now
deface many streets, but I cannot believe that in the vast majority of cases it
will not be possible to establish which board was erected first by a simple
inquiry from the owner of the property or from the estate agents themselves or
from the records of the company that erected the boards. Of course it would be
easier to bring every estate agent before the court and find them all guilty,
but to accept such a construction would, in my view, be to promote injustice in
the interests of administrative convenience, and I cannot believe that it was
the intention of the Secretary of State to invite Parliament to approve
regulations that would provide for such a result.
The respondent
also placed reliance upon the wording of the substituted definition of Class
III(a) contained in the Town and Country Planning (Control of
Advertisements) (Amendment No 2) Regulations 1987 which was due to come into
force on October 28 1988. The new definition of Class III(a) now reads:
(i) An advertisement relating to the sale or
letting, for agricultural, industrial or commercial use or for development for
such use of the land or premises on which it is displayed consisting of a
single board not exceeding two square metres in area, or of two joined boards,
together not exceeding 2.3 square metres in area, which, if displayed on a
building, does not project from the face of the building by more than one
metre.
(ii) An advertisement relating to the sale or
letting for residential use or for development for such use of the land or
premises on which it is displayed consisting of a single board not exceeding
0.5 square metre in area, or of two joined boards together not exceeding 0.6
square metre in area, which, if displayed on a building, does not project from
the face of the building by more than one metre:
Provided that
nothing in paragraph (i) or (ii) —
(i) shall permit more than one advertisement to
be displayed at any one time on the land or premises concerned;
(ii) shall authorise the display of an advertisement
indicating that land or premises have been sold or let other than by the
addition to an existing advertisement of a statement that a sale or letting has
been agreed or that the land or premises have been sold or let, subject to
contract.
The respondent
points in particular to the words of subpara (i) of the proviso and submits
that, whatever view might be taken of the construction of the Regulations of
1984, the amended regulations now make it plain that permission is limited to
one advertisement and therefore a deemed permission for the first advertisement
cannot survive once a second advertisement is displayed. From this it is argued
that Parliament has now made it plain that it was prepared in the interests of
enforcing the legislation to impose a harsh and possibly unjust result on the
first advertiser and therefore your lordships should not shrink from so
construing the Regulations of 1984 to produce the same result.
My lords, I do
not accept this construction of the Regulations of 1987. As I read the
explanatory note to the amendment, it was introduced to scotch the argument
advanced in this case in the Divisional Court to the effect that the
regulations permitted each advertiser to have one board rather than limit the
permission to one board for each sale or letting. It is now clear beyond
peradventure that the deemed consent is limited to one board at any one time.
Nevertheless, I would read the amended regulations as subject to a similar
implication so that the first advertisement attracted the deemed consent and
was not lost by the unlawful erection of subsequent sale boards.
The courts
should surely be slow to impute to Parliament so harsh an intention as to
impose criminal liability on a citizen acting lawfully because another citizen,
over whom he has no control, acts unlawfully. We are dealing here with
delegated legislation which does not receive the scrutiny of primary
legislation and if in the interests of administrative convenience such an
apparently unjust rule is to be introduced it should be in the clearest
possible language so that the purport of the legislation can be readily
recognised and the need for such a measure can be carefully considered before
it is approved.
My lords, in
the absence of such clear language, I am quite unable to impute to the
Secretary of State or Parliament the intention that an estate agent in the
position of the appellant should be held guilty of a criminal offence. I would
therefore answer the certified question in the negative and allow this appeal
with costs in this House.
LORDS KEITH
OF KINKEL, ELWYN-JONES, BRANDON OF OAKBROOK and GOFF
OF CHIEVELEY agreed.