Appellant displaying advertisement – Crown Court finding advertisement having benefit of deemed consent – Council serving discontinuance notice on appellant – Appellant charged with offences of displaying advertisements – Whether doctrine of autrefois acquit applied – Whether discontinuance notice improperly served and invalid – Justices finding appellant guilty – Appeal dismissed
In 1990 the appellant was prosecuted for three offences of displaying advertisements on a hoarding on the flank wall of 40 Godstone Road, Kenley, contrary to regulation 26 of the Town and Country Planning (Control of Advertisements) Regulations 1989 and section 109(2) of the Town and Country Planning Act 1971. The justices hearing the informations found that the hoarding had the benefit of deemed consent under Class 13 in Schedule 3 to the regulations by being used for the display of an advertisement on April 1 1974. The prosecutor’s appeal by way of case stated was allowed. The appellant appealed to the crown court and the appeal was allowed. Subsequently, the respondent council served a discontinuance notice on the appellant under regulation 8 of the Town and Country Planning (Control of Advertisements) Regulations 1992 determining any deemed planning consent. The appellant did not appeal against the notice which, therefore, took effect two months after service. The council then charged the appellant with displaying an advertisement in breach of the discontinuance notice, contrary to section 224(3) of the Town and Country Planning Act 1990 . The justices found the appellant guilty.
The appellant appealed by way of case stated contending that the matter had already been decided in his favour when he was acquitted by the crown court, and therefore the doctrine of autrefois acquit applied, since he could not be tried for the same matter twice. It was further contended that regulation 8(2)(a) of the 1992 Regulations required the notice to be served on “the advertiser”, namely the person whose goods were advertised on the hoarding, and, therefore, since it had been served on the appellant, it was not a valid notice. The respondents contended that the doctrine of autrefois acquit did not apply and that the discontinuance notice had been validly served on the appellant as “the advertiser”. The respondents relied on regulation 2(3)(c) of the regulations, which defined “a person displaying an advertisement” as “the person who undertakes or maintains the display of the advertisement”.
Held The appeal was dismissed.
1. Although the crown court had disposed of the matter, that had been on the basis that there was deemed consent. Once that had been ended by a valid discontinuance notice, the displaying of the advertisements, even if continuous, had constituted a fresh offence. Therefore, the matter had not already been dealt with in the appellant’s favour and accordingly the doctrine of autrefois acquit did not apply: Kingston upon Thames Royal London Borough Council v National Solar Sites Ltd [1994] JPL 251, considered.
2. For the purposes of regulation 8(2)(a) of the 1992 Regulations “the advertiser” was the person whose specific interests the advertisements promoted, since the provisions had been drafted when advertisements were changed less regularly, without agents like the appellant. That was confirmed by the fact that sections 2(3)(a) and (b) of the 1992 Regulations mirrored the two categories referred to in sections 224(4) and (5) of the 1990 Act.
3. However, although the notice had been served on the appellant rather than “the advertisers”, the appellant had suffered no prejudice as a result. Therefore, since the requirement in regulation 8(2)(a) of the 1992 Regulations that the notice be served on “the advertiser” was only directory, and since the notice had not been appealed against when it had been served, the discontinuance notice was valid.
The appellant appeared in person; Simon Birks (instructed by Stonehams, of Croydon) appeared for the respondents.