The display of advertisements requires consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.
An advertisement can benefit from deemed consent under Class 13 Part 1 of Schedule 3 to the 2007 Regulations if it has been displayed on a site that has been used “continually for the preceding 10 years” for the display of advertisements without express consent. Class 13 requires active use for advertisement and continuity, the Administrative Court has decided in London Borough of Hackney v JCDecaux (UK) Limited [2022] EWHC 2621 (Admin).
The case concerned an appeal against a removal notice requiring removal of an advertising panel on land in Homerton High Street, London E9. It was common ground that the preceding 10 years was the period between 14 February 2010 and 14 February 2020.
The council argued that there were two periods of time during the preceding 10 years when the site was not in use for display of advertisements and so the requirement of continual use was not met. The first was 14 February 2010 to June/July 2010 when the panel was first installed/activated. The second was 17 February to 26 May 2019 when the removal of the mechanical display panel and its replacement with a digital one took longer than anticipated.
The Magistrates Court found that neither period amounted to a cessation of use, so the requirements of Class 13 were met and the removal notice should not have been issued.
The council appealed by way of case stated to the Administrative Court asking whether the requirement for the site to be used continually for the preceding 10 years requires active use throughout that period. Was any break in display sufficient to amount to a material interruption which amounts to a cessation of use?
The purpose of Class 13 is to allow for the regularisation of unauthorised advertisements by effluxion of time and the acquiescence of the planning authority. In Westminster City Council v Moran [1998] 4 PLR 79 the court distinguished between “continuous” and “continual” defining the latter as “regularly occurring”. The Court of Appeal in Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415; [2012] PLSCS 234 considered that the two words often cause confusion but little turns on them, with the Oxford Dictionary definition of continual as “always happening” or “very frequent and without cessation”, and continuous as “connected, unbroken” or “uninterrupted in time or sequence”. Both require continuity.
The Administrative Court decided that the judge applied too broad a test and failed adequately to analyse the evidence. The legal test in Class 13 is whether there is “display of advertisements” at a site, not whether or not an advertiser has a contract to use a site for advertising and intends to do so. The site had to be actively used for advertising.
The judge had erred in treating the date when advertisements went live in July 2010 as being irrelevant and had failed to apply the Class 13 requirement to the second period when no advertisement was displayed at the site. The respondent’s appeal against the removal notice would be reconsidered.
Louise Clark is a property law consultant and mediator
