Occupier placing advertisement board outside shop – Whether board obstructing highway contrary to section 137(1) of Highways Act 1980 – Whether board constituting a danger to passengers contrary to section 28 of the Town and Police Causes Act 1847 – Magistrates dismissing summonses – High Court dismissing council’s appeal
The respondent was the occupier of shop premises situated at 12 Royal York Mansions, The Parade, Margate, which were known as “Peter’s Fish Factory”. For many years he caused a show board to be placed on the pavement opposite his premises to advertise his shop. After the appellant council had built a parking area and fence immediately opposite the shop, by way of an improvment scheme, the respondent placed the board on the pavement at the end of the fence where the pavement was wider. The Highways Authority, through Thanet District Council, established a system of licensing for the display of such boards in the Thanet area, and the respondent was informed of the need to apply for a licence. The application was refused on the ground that it exceeded the limits stipulated.
However, the respondent continued to place the board on the pavement at the end of the fence. Subsequently, informations were preferred against him that on August 26 1997 he, first, without lawful authority or excuse, wilfully obstructed the free passage along the highway contrary to section 137(1) of the Highways Act 1980, and second, placed a show board on the footway contrary to section 28 of the Town and Police Causes Act 1847. The justices dismissed the first information, finding that the board had not obstructed the highway since the respondent’s use of the highway had been reasonable. The second information was dismissed on the ground that there was no actual or potential danger to the users of the pavement. The council requested an appeal by way of case stated. When stating the case the justices, on receiving further advice from their clerk, concluded that the respondent’s use of the highway had not been reasonable and accordingly they found that their decision in respect of the first information was incorrect.
Held The appeal was dismissed.
1. The justices ought not to have acted on any advice from the clerk when stating the case. They had previously reached their decision and any subsequent decision could not have been challenged by the respondent. Therefore, that part of the case stated was to be dismissed.
2. The grounds on which the application for a licence for the board had been refused had not been solely considerations of safety and therefore it could not be automatically concluded that the placing of the board on the highway was unreasonable. The board had been placed more than 1m from the edge of the pavement and there was no reason why that was necessarily unsafe. Accordingly, the justices’ dismissal of the first information was lawful.
3. The justices had concluded that the board had not constituted a danger, actual, potential or otherwise. It was clear that the justices had had regard to the evidence overall, including that of the relevant witnesses, and had concluded that the appellants had failed to show that the board constituted danger in a realistic sense. Accordingly, they had been correct to dismiss the second information.
Joanna Clayton (instructed by the solicitor to Kent County Council) appeared for the appellants; the respondent did not appear and was not represented.