Enforcement notice — Canopies erected over two windows — Canopies containing name of business — Appeal allowed — Reporter deciding canopies had deemed planning permission as advertisements — Whether canopies advertisements — Whether canopies erected for the purpose of displaying advertisements
In February
1986 the owner of shop premises was refused planning permission to erect
canopies over two ground floor windows. Notwithstanding that refusal, the owner
did erect the canopies and added the name of his business to the front of them.
The appellant local planning authority issued an enforcement notice contending
a breach of planning control, and the owner’s appeal was allowed by the
reporter. The reporter decided that, as the canopies were not excessively large
and contained the name of the business over the major part of the vertical
front of each canopy, they were advertisements and had the benefit of deemed
planning consent under regulation 10 of, and class IV of Schedule 4 to, the
Town and Country Planning (Control of Advertisements) (Scotland) Regulations
1984 (SI no 467). The local planning authority appealed.
The canopies
were per se ‘development’ within the meaning of the Town and Country
Planning (Scotland) Act 1972. They were erected in order to protect goods in
the shop windows, and the fact that the business was displayed was not
sufficient to convert the canopies into the display of advertisements within
the meaning of section 62 of the Act: see p 87B.
The reporter
never addressed the critical question of whether the canopies were in the
nature of advertisements; had he done, he would not have been entitled to
conclude that the canopies were in the nature of advertisements: see p 87C.
referred to in the opinion
Appeal under
section 233 of the Town and Country Planning (Scotland) Act 1972
This was an
appeal under section 233 of the Town and Country Planning (Scotland) Act 1972
against a decision of the Secretary of State for Scotland, by his reporter, who
had allowed an appeal against an enforcement notice issued by the City of
Glasgow District Council.
(instructed by Simpson & Marwick WS) appeared for the appellant local
planning authority.
Campbell (instructed by the solicitor for the Secretary of State for Scotland)
appeared for the respondents.
following opinion of the court was delivered.
LORD DUNPARK (delivering the opinion of the court): On September 4 1986 Glasgow
District Council issued an enforcement notice requiring the shopkeeper at 32-34
Nithsdale Road, Glasgow, to remove two canopies which had been erected over the
two windows of the shop there on the ground that they had been erected without
planning permission. The shopkeeper appealed
section 85 of the Town and Country Planning (Scotland) Act 1972 (hereinafter
referred to as ‘the Act’) upon the ground that planning permission ought to be
granted for the development to which the notice relates. The reporter,
appointed by the Secretary of State for Scotland to determine this appeal,
refers in his decision letter dated June 30 1987 to the district council having
refused on February 17 1986 an application by the shopkeeper for planning
permission for the erection of these canopies. The reporter sustained the
appeal against the enforcement notice upon the ground that the erection of
these canopies fell within the terms of section 62 of the Act and that planning
permission for their erection was in terms of that section ‘deemed to be
granted’. He quashed the enforcement notice and decided that the refusal of
planning permission was of ‘no legal effect’ because planning permission was
not required. The district council has now appealed to this court against that decision.
In para 3 of
his decision letter the reporter states:
The reason
given for the refusal of planning permission was that ‘the canopies, by their
size, bulk, colour and position on the frontage would form an obtrusive and
over conspicuous feature to the detriment of the visual amenity of not only the
shopfront but also the surrounding Strathbungo Outstanding Conservation Area’.
This is also
the reason given by the district council for serving the enforcement notice.
In para 2 of
his decision letter the reporter describes the shop premises and the canopies
as follows:
The appeal
premises are in the middle of a long 3 storey terrace of properties built to
the heel of the footpath along the north east side of Nithsdale Road.
All of the
properties at ground floor level are in commercial use; the upper floors, by
their appearance, provide residential accommodation. Access to the appeal
premises is provided by a central recessed door. On each side of the door is a
large window. Above the windows and door, a 6m long fascia board, which
incorporates the words Pas de deux, extends over the full width of the
property. White canopies — which extend over the public pavement by about 1m
and are about 1m high — beneath the fascia board extend over the full width of
each window. The words Pas de deux, in green, extend over the front
panel of each of the canopies.
The crux of
his decision is to be found in para 7 of his decision letter:
I acknowledge
that the main function of the canopies is to protect the merchandise on display
in the windows, and that the words Pas de deux ie the advertising
material incorporated in the canopies, could probably be displayed more easily
on the face of the building. Nevertheless I consider that as the canopies are
not excessively large, being only marginally wider than the windows over which
they are erected and being proportionately modest in height and in forward
projection, and as the words Pas de deux extend over the major part of
the vertical front or forwardmost part of each canopy, they have the benefit of
deemed planning consent in terms of regulation 10, Schedule 4, class IV of the
Town and Country Planning (Control of Advertisements) (Scotland) Regulations
1984. As a result, planning permission in terms of section 62 of the Town and
Country Planning (Scotland) Act 1972, is also deemed to have been granted. For
these reasons your appeals against both the refusal of planning permission, and
the enforcement notice served, by the district council succeed.
Mr Hodge,
counsel for the district council, referred us to the terms of section 62 of the
Act, which are as follows:
62. — Where the display of advertisements in accordance with
regulations made under section 61 of this Act involves development of land,
planning permission for that development shall be deemed to be granted by
virtue of this section, and no application shall be necessary in that behalf
under Part III of this Act.
He also
referred us to the regulations (SI 1984 no 467) made under section 61 of the
Act. In para 2(1) of the regulations, ‘advertisement’ is defined as meaning
any word,
letter, model, sign, placard, board, notice, device, or representation whether
illuminated or not, in the nature of, and employed wholly or partly for the
purposes of, advertisement, announcement or direction (excluding any such thing
employed wholly as a memorial or as a railway signal), and includes any
hoarding or similar structure or any balloon used, or adapted for use, for the
display of advertisements, and references to the display or advertisements
shall be construed accordingly.
The definition
in section 275(1) of the Act is identical except for the exclusion clause in
parenthesis, which is omitted from section 275(1).
It was
conceded that, if the canopies containing the words Pas de deux were
‘advertisements’ within the meaning of the Act and regulations, they would be
covered by regulation 10 and Schedule 4, but counsel for the district council
submitted that the reporter had misconstrued the statute in respect that there
was no display of advertisements involving the development of land within the
meaning of section 62 of the Act, for the erection of the canopies themselves
was development of land and that they had not been erected for the purpose of
displaying advertisements.
Counsel
submitted that in terms of the definitions in section 275(1) of the Act and in
regulation 2(1) the thing which was said to be an advertisement must be ‘in the
nature of . . . advertisement’. The ‘development’ in this case was the erection
of the canopies. The fact that they contained the words Pas de deux did
not convert them from development of land into ‘the display of advertisements .
. . involving the development of land’. Accordingly, he submitted that the
reporter had misconstrued section 62 and the regulations and moved us to
sustain his appeal.
On the other
hand, Mr Campbell, counsel for the Secretary of State, submitted that the
reporter had not erred in law or misconstrued the statute, for the question was
not one of construction of the statute but of applying the Act and regulations
to the facts of this case. Counsel said that the canopies involved development
and displayed advertisements within the meaning of section 62. He gave us the
example of an illuminated shop sign which not only advertised the shop but also
illuminated the entrance to the shop. That, he said, would be ‘in the nature of
. . . advertisement’, although not ’employed wholly . . . for the purposes of
advertisement’. So, he said, the critical question was whether the canopies
were or were not ‘in the nature of . . . advertisement’. That, he submitted,
was a question of fact and degree. If there was no error in law, we could only
reverse the decision of the reporter if we considered that the decision was so
unreasonable that no reasonable person could have reached it.
On the
construction of the definitions counsel submitted that the canopies were
‘devices . . . in the nature of . . . advertisement’. He referred us to one of
the definitions of ‘device’ in the Shorter Oxford Dictionary as
‘something devised or contrived for bringing about some end or result: an
arrangement’ and submitted that the canopies with the words Pas de deux
fell within that definition. He made no attempt to bring these canopies with
the words Pas de deux under any other of the words of the definition,
and we do
thereon can reasonably be considered to be a ‘word, letter, model, sign,
placard, board, notice, device or representation’ within the meaning of the
definition of advertisement.
Mr Campbell
had to concede that the canopies without the words Pas de deux were not
an ‘advertisement’, but he submitted that the addition of the words of the shop
name coverted these canopies from something that did not fall within the terms
of section 62 into something that did.
In our
opinion, these canopies are per se ‘development’ within the meaning of
the Act. From the shopkeeper’s letter to the Secretary of State dated December
12 1986 it appears that these canopies were erected in order to protect the
goods in the shop windows from discolouration by the light. The fact that the
shop name is displayed upon them is not sufficient, in our opinion, to convert
these canopies from protective canopies into ‘the display of advertisements’
within the meaning of section 62. Moreover, there is nothing in para 7 of the
decision letter to suggest that the reporter ever addressed his mind to the
critical question of whether the canopies were in the nature of advertisements.
If he had done so, he would not have been entitled to conclude that the
canopies were in the nature of advertisements. We must therefore quash the
decision of the reporter and hold that these canopies, notwithstanding the shop
name displayed thereon, are development of land which requires planning
permission.
We therefore
remit this case to the Secretary of State in order that he may decide whether
to sustain or refuse the shopkeeper’s appeals against the refusal of the
district council to grant planning permission for the erection of these
canopies and against the enforcement notice.
Appeal
allowed and case remitted to the Secretary of State.
