Advertisement control regulations –Advertisement hoarding displayed without express or deemed consent–Prosecution for breach of regulations by local planning authority–Whether authority required to have regard to interests of amenity or public safety in deciding to prosecute–Town and Country Planning (Control of Advertisements) Regulations 1989
The appellants,
Mr and Mrs Kingsley, were convicted of displaying an advertisement hoarding on
the rear elevation of their property at 78 North End Road, London W14, without
express or deemed consent, contrary to regulations 5 and 26 of the Town and
Country Planning (Control of Advertisements) Regulations 1989 and section
109(2) of the Town and Country Planning Act 1971 (section 224(3) of the Town
and Country Planning Act 1990). The stipendiary magistrate found that in
prosecuting the appellants the local planning authority were exercising their
powers under regulation 4 lawfully in the interests of amenity.
The appellants
appealed to the High Court by way of case stated, contending that the
respondent authority’s decision to prosecute was an exercise of their powers
under the regulations and that those powers had not been exercised in the
interests of either amenity or public safety.
Regulation 4
was intended to ensure that in exercising their specific powers to give or
refuse express consent the local planning authority should exercise those
powers in the interests of amenity or public safety: see pp 58F-59A and 59F-G.
However, in deciding to prosecute for an offence under section 109(2) of the
1971 Act, where an advertisement was displayed without consent, the local
authority were not exercising a power under the regulations and consequently
they were not fettered by the requirement in regulation 4 to exercise their
powers under the regulations only in the interests of amenity and public
safety. They were entitled to take a strict view and to insist on compliance
with the Act and the regulations: see pp 59A-B and 59F.
Per Bingham LJ: If he were wrong and regulation 4 did apply to the
decision to prosecute, there was evidence before the magistrate, given by the
council’s planning enforcement officer, from which she was entitled to find
that the respondents had exercised their powers lawfully in the interests of
visual amenity: see p 59C.
referred to in the judgments
Appeal by way
of case stated
This was an
appeal by way of case stated from a decision of Miss Audrey Jennings, a
metropolitan stipendiary magistrate, sitting at Wells Street Magistrates’ Court
on March 2 1990, whereby the appellants, Mr F A Kingsley and Mrs P A Kingsley,
were convicted of an offence contrary to regulations 5 and 26 of the Town and
Country Planning (Control of Advertisements) Regulations 1989 and section
109(2) of the Town and Country Planning Act 1971 (section 224(3) of the Town
and Country Planning Act 1990).
Romilly (instructed by Dibb & Clegg) appeared for the appellants, Frederick
and Patricia Kingsley.
Whittaker (instructed by the Director of Legal Services, Hammersmith and Fulham
London Borough Council) appeared for the respondents.
following judgments were delivered.
BINGHAM LJ: This is an appeal by case stated against a decision of Miss Audrey
Jennings, a metropolitan stipendiary magistrate, sitting at Wells Street
Magistrates’ Court on March 2 1990. The appellants are Mr Frederick Kingsley
and his wife, Mrs Patricia Kingsley. On the date in question they were
convicted of informations which alleged that on June 29 1989 they displayed an
advertisement hoarding at second- and third-floor levels on the rear elevation
of 78 North End Road, London W14, without consent being granted by the local
authority, which was Hammersmith and Fulham London Borough Council, or by the
Secretary of State for the Environment or as a result of consent deemed to be
granted under the provisions of the Town and Country Planning (Control of
Advertisements) Regulations 1989 (SI 1989 No 670). That offence was said to be
contrary to regulations 5 and 26 of the regulations in question and section
109(2) of the Town and Country Planning Act 1971.
Since this is
not legislation which the court encounters every day, it is right to begin by
reciting the effect of those provisions. Section 109(2) of the 1971 Act provides:
Without
prejudice to any provisions included in regulations made under section 63 of
this Act by virtue of [the preceding subsection], if any person displays an
advertisement in contravention of the 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 . . .
The
regulations in question provide as follows. Regulation 5:
Except as
provided by regulation 3(2) and regulation 19(1)(a), 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 granted by regulation 6 below (referred
to in these Regulations as ‘deemed consent’).
It is
necessary to take account of regulation 6(1) which provides:
Subject to
regulations 7 and 8 below, deemed consent is hereby granted for the display of
an advertisement falling within any class specified in Part 1 of Schedule 3,
subject
(a) to
any conditions and limitations specified in that Part in relation to that
class; and
(b) to
the standard conditions.
I need not
refer to para (2) of that regulation.
Regulation 26
provides:
A person
displaying an advertisement in contravention of these Regulations shall be
liable on summary conviction of an offence under section 109(2) of the Act to a
fine of an amount not exceeding level 3 on the standard scale . . .
Part 1 of
Schedule 3 provides specified classes of advertisements which may be displayed
with deemed consent.
Before the
stipendiary magistrate there was considerable argument concerning the effect of
Class 8 which deals with advertisements on hoardings. There are a number of
conditions which have to be satisfied before advertisements on hoardings are to
be deemed to be the subject of planning consent. It is unnecessary to go into
the detail of that class or those conditions because Mr Romilly, who appears for
the appellants, realistically and candidly accepts that there are flagrant
breaches by his clients of the conditions there specified.
To take one
example, it is stipulated that at least 14 days before an advertisement is
first displayed the local planning authority should be notified in writing by
the persons displaying it of the date on which it shall first be displayed and
they should be sent a copy of the relevant planning permission, whereas in this
instance there was no notice given to the local authority and therefore there
was no attempt to comply with that condition. I take that simply as one
example, because there are other conditions which were also not complied with.
Indeed, in my judgment, the class is by no means applicable to what these appellants
did.
The facts
found by the stipendiary magistrate were these. She found that the appellants
were the registered proprietors of the property in question at 78 North End
Road, that they received planning permission for additional office space and that
an advertisement hoarding was displayed on the rear elevation of the building,
which was first seen by an officer from the council in August 1988 but, more
relevantly, was observed by him on June 29 1989. By that date a decision had
been taken to prosecute the appellants, but it took a considerable time before
the prosecution was actually mounted. It is recorded that no notice was given
to the appellants of the decision to prosecute them until the summonses had
been served upon them. The stipendiary magistrate then found that there were
failures in a number of respects to comply with the conditions in Class 8 in
Part 1 of Schedule 3 to the regulations.
There was
evidence given to the magistrate that the power which the local authority had
exercised had been exercised, among other things, in the interests of visual
amenity. That is a matter to which I shall return.
In expressing
her opinion, the stipendiary magistrate found that by virtue of regulation 4 of
these regulations the respondents were exercising their powers lawfully in the
interests of amenity. She found that there were breaches of the conditions
which would have conferred deemed consent on these appellants. Accordingly, she
found that an offence had been committed contrary to regulation 26 of the
regulations and section 109(2) of the 1971 Act. She held the appellants jointly
liable as registered proprietors.
In arguing
this appeal, Mr Romilly has rightly felt constrained to acknowledge that on the
face of it there were flagrant breaches of the planning regulations. Before us,
he has argued one point only in seeking to challenge the decision of the
magistrate. That point depends on regulation 4 of the regulations in question,
which provides:
(1) A
local planning authority shall exercise their powers under these Regulations
only in the interests of amenity and public safety, taking account of any
material factors and in particular —
(a) in the
case of amenity, of the general characteristics of the locality, including the
presence of any feature of historic, architectural, cultural or similar
interest, disregarding . . . any advertisements being displayed there;
(b) in the
case of public safety —
. .
.
(ii) whether
any display of advertisements is likely to obscure, or hinder the ready
interpretation of, any road traffic sign, railway signal, or aid to navigation
by water or air.
The submission
which Mr Romilly has made is that the local authority’s decision to prosecute
is an exercise of their powers under these regulations and that this power was
not exercised in the interests of either amenity or public safety.
For my part, I
feel bound to reject both of those points. Regulation 4 is clearly intended to
ensure that in exercising the specific powers to give or
they should exercise those powers in the interests of amenity and public
safety. But there is nothing in the regulations which confers on the local
authority a power to prosecute. I am unpersuaded that the exercise of a
prosecuting function is subject to the duties specified in regulation 4. It
appears to me that in the interests of maintaining control over development for
which there has been no consent, a local authority are entitled to take a
strict view and to insist on compliance with that which the statute and the
regulations provide. It is, of course, entirely a question for them as to how
they enforce these statutory provisions, but I am unpersuaded that regulation 4
obliges them, as a prosecutor, to prosecute only where there has been a breach
of amenity or public safety.
If, however, I
am wrong in that view, then it appears to me that Mr Romilly’s argument falls
at the second hurdle, which is to show that the prosecuting power was not
exercised in the interests of amenity and public safety. There was evidence
before the stipendiary magistrate, given by the council’s planning enforcement
officer, that the regulation 4 power was exercised in the interests of visual
amenity. The magistrate has found that the respondents were exercising their
powers lawfully in the interests of amenity.
Mr Romilly
submits that in the circumstances this was a finding which she could not have
made and that the council’s witnesses were not very convincing in describing
the council’s motives. But there was no evidence called by the appellants in
the court below. It appears to me to be plainly a finding that was open to the
magistrate, if she was persuaded it was the right finding to make.
It is
necessary to emphasise that what is or is not regarded as detrimental to visual
amenity is a highly judgmental question. It is not one on which this court,
sitting in this capacity, should take a view. The only question asked is
whether the magistrate’s decision is one which she was not entitled on the
evidence to reach. It seems to me that on the evidence before her it was one
which she plainly was entitled to reach.
Accordingly, I
would, for my part, dismiss this appeal.
HODGSON J: I agree. The stipendiary magistrate seems to have accepted the argument
that the planning authority were exercising a power under the regulations when
they decided to prosecute the appellants for what was plainly a contravention
of regulation 26. For my part, I have no doubt whatsoever that in deciding to
prosecute, and in prosecuting, the local planning authority were not acting
under regulation 4 at all. Regulation 4, in my judgment, controls the way in
which the local planning authority should deal with applications which are made
to them.
As the
appellants in this case plainly did not come within the provisions of deemed
planning consent, if they were going to put up the advertisements they had to
apply for express planning consent. On that application, the local planning
authority would have had to consider the exercise of powers under regulation 4.
They would have had to consider the application on that basis. No application
was made for express consent. In my judgment, the stipendiary magistrate was
wrong in holding or finding that the planning authority were acting under
regulation 4(1) in prosecuting these appellants.
Appeal
dismissed with costs.
