Town and country planning — Control of advertisements — Estate agents’ sale boards — Offences — Whether an estate agent commits an offence if, after he has lawfully erected a sale board, another agent, with or without the former’s knowledge, erects a second board — Conflict of opinion among local authorities — A ‘hard rule’ imposed by Parliament — The appellant estate agent appealed against his conviction by magistrates under the Town and Country Planning (Control of Advertisements) Regulations 1984 for displaying a sale board without consent
was in fact charged under two informations relating to two different houses —
In each case after the appellant had placed a sale board on the property in
question other agents (different agents in each case) placed a second board on
it — The offence alleged against the appellant was that, in contravention of
regulation 6 of the 1984 regulations, he had displayed an advertisement without
the express or deemed consent of the local planning authority — There was
no question of any express consent and the deemed consent mentioned in the
regulations was restricted to one advertisement consisting of a board of the
prescribed dimensions — The magistrates concluded that deemed consent under the
regulations was for the first and only board, not for one board per advertiser
— Once a second board was added no deemed consent existed; it did not continue
to be attached to the first board — The divisional court affirmed the
magistrates’ decision — The court pointed out that the 1984 regulations plainly
limited the owner of the property to one board and in the court’s view the same
limitation applied to the estate agent — It could not be argued that each agent
had displayed only one board in respect of his sale, because he was not selling
at all but merely advertising the owner’s willingness to sell
rejected a submission that no offence was committed by the appellant in the
absence of knowledge by him of the facts giving rise to the offence, namely,
knowledge that he was one of two persons each displaying a separate
advertisement in respect of a single sale — The answer to this was that the
offence was one of absolute liability; there was no requirement of the
existence of mens rea — Held accordingly that the appellant was properly
convicted even though he lawfully displayed the first advertisement with deemed
consent and was in ignorance of the arrival of the second advertisement which
destroyed that consent — It might seem strange that an act, lawful when done,
could become unlawful as a result of something done by a stranger — However, it
was noteworthy that new regulations, to come into operation in October 1988
(Town and Country Planning (Control of Advertisements) (Amendment No 2)
Regulations 1987) (SI 1987 no 2227), showed in clearer language that Parliament
was willing to impose a hard rule — Appeal dismissed (public interest
certificate granted but leave not given to appeal to House of Lords)
J: It may be thought that if, despite penalties to which estate agents are
subjected, offences are widespread, they would be more effectively curtailed if
house-owners were also prosecuted
The following
cases are referred to in this report.
Maidstone
Borough Council v Mortimer [1980] 3 All ER
552; (1980) 43 P&CR 67; [1980] EGD 941; 256 EG 1013, DC
R v Wells Street Metropolitan Stipendiary Magistrate, ex parte
Westminster City Council [1986] 1 WLR 1046; [1986] 3 All ER 4, DC
This was an
appeal by A H Porter, of Whitman Porter, estate agents, against his conviction
by Richmond magistrates for two offences of displaying estate agents’ sale
boards without the consent of the local planning authority, contrary to
regulation 6 of the Town and Country Planning (Control of Advertisements)
Regulations 1984 (SI 1984 no 421). The prosecutions were brought by Michael
John Honey, chief executive and town clerk of the London Borough of Richmond
upon Thames.
T Bergin
(instructed by Axelrods, Richmond, Surrey) appeared on behalf of the appellant;
David Lamming (instructed by G S McGowan, solicitor to the London Borough of
Richmond upon Thames) represented the respondents.
Giving
judgment, BINGHAM LJ said: This appeal raises a vexed problem on the planning
control of estate agents’ boards. If an estate agent, instructed to sell or let
a residential property, displays a board outside the property, no other board
being at that time displayed, does he commit an offence if another agent (to
his knowledge or without it) thereafter displays a second board?
I described
this problem as ‘vexed’ because different local authorities have favoured
different solutions. Amended regulations, to take effect in October 1988, will
impose a statutory solution. But I understand that a number of cases await the
outcome of this one, so the case is of some general importance.
I would like
at the outset to acknowledge our indebtedness to counsel for their clear,
well-prepared and economical arguments. Both arguments were models of appellate
advocacy. If we have reached the wrong answer, it is through no fault of
counsel.
The appellant
is an estate agent. The respondent is the chief executive and town clerk of the
London Borough of Richmond upon Thames. In about November 1986 the appellant
displayed a ‘For Sale’ board outside 18 The Vineyard, Richmond. In about
January 1987 he displayed a ‘For Sale’ board outside 25-28 The Hermitage,
Richmond. He erected his boards before any other was erected at either house. A
second board was later erected at each house by another agent, so that there
were two boards displayed at 18 The Vineyard on November 18 1986 and at 25-28
The Hermitage on January 25 1987. The appellant may have been aware of the
existence of a second board at 18 The Vineyard before February 23 1987 when
summonses were issued. He did not know if he was aware of the second board at
25-28 The Hermitage before that date.
Two
informations were laid against the appellant by the local authority, one
relating to each house. Each charged that the appellant:
did . . .
display an advertisement, namely an Estate Agents ‘Sale’ Board being one of two
such boards displayed at the said premises without consent having been granted
in that behalf in accordance with Regulation 6 of the Town and Country Planning
(Control of Advertisements) Regulations 1984 contrary to Regulation 8 of the
said Regulations and section 109(2) of the Town and Country Planning Act 1971.
The
informations were heard by Richmond justices on May 13 1987. They found the
cases proved. The appellant accordingly appeals against those findings by way
of case stated.
I shall refer
to the Town and Country Planning Act 1971 as ‘the Act’ and to the Town and
Country Planning (Control of Advertisements) Regulations 1984 (SI 1984 no 421)
as ‘the 1984 Regulations’.
Section 63 of
the Act provides for regulations to be made ‘for restricting or regulating the
display of advertisements so far as appears to the Secretary of State to be
expedient in the interests of amenity or public safety’. Such regulations may
provide ‘for requiring the consent of the local planning authority to be
obtained for the display of advertisements’ (section 63(2)(b)).
The offence of
which the appellant was convicted was created by section 109(2) of the Act:
Without
prejudice to any provisions included in regulations made under section 63 of
this Act by virtue of subsection (1) of this section, 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 £100 and, in the case of
a continuing offence, £5 for each day during which the offence continues after
conviction.
Regulation 8
of the 1984 regulations increased the maximum penalty on contravention.
Section 109(3)
of the Act is also important:
For the
purposes of subsection (2) of this section, and without prejudice to the
generality thereof, a person shall be deemed to display an advertisement if — (a)
the advertisement is displayed on land of which he is the owner or occupier; or
(b) the advertisement gives publicity to his goods, trade, business or
other concerns:
Provided that
a person shall not be guilty of an offence under that subsection by reason only
that an advertisement is displayed on land of which he is the owner or
occupier, or that his goods, trade, business or other concerns are given
publicity by the advertisement, if he proves that it was displayed without his
knowledge or consent.
The heart of
the problem before the court lies in the 1984 Regulations. Regulation 6(1)(2)
and (3), so far as relevant, provide:
(1) 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 deemed to be granted under paragraph (2) below.
(2) Consent shall be deemed to be granted for the
display of any advertisement displayed in accordance with any provision of
these Regulations whereby advertisements of that description may be displayed
without express consent; . . .
(3) In so far as the nature of the consent
permits, consent for the display of advertisements shall enure for the benefit
of the site to which the consent relates and of all persons for the time being
interested in that site; . . .
No express
consent was in this case sought or given, so one must inquire whether under the
1984 regulations consent is to be deemed to have been granted. Regulation 14
specifies the classes of advertisements which may be displayed without express
consent. Only one class is relevant. This is Class III headed ‘Certain
advertisements of a temporary nature’. Para (a) reads:
Advertisements
relating to the sale or letting of the land on which they are displayed;
limited, in respect of each such sale or letting, to one advertisement
consisting of a board (whether or not attached to a building) not exceeding 2
square metres in area, or of two conjoined boards, together not exceeding 2.3
square metres in area; . . .
Paras (b) and
(c), dealing with sales of goods or livestock and building works, contain a
similar limitation to one advertisement. Paras (d) and (e), dealing with
certain local events, specify a maximum area of advertisement only.
Our attention
was drawn to the Town and Country Planning (Control of Advertisements)
(Amendment No 2) Regulations 1987 (SI 1987 no 2227). By virtue of regulation 3
of and Schedule 2 to those regulations, para (a) of Class III of regulation
14(1) of the 1984 regulations is, with effect from October 28 1988, to be
replaced by a paragraph in these terms:
(a)(i) An advertisement relating to the sale or
letting, for agricultural, industrial or commercial use or for development for
such use of the land or premises on which it is displayed consisting of a
single board not exceeding 2 square metres in area, or of two joined boards,
together not exceeding 2.3 square metres in area, which, if displayed on a
building, does not project from the face of the building by more than one
metre.
(ii) An advertisement relating to the sale or
letting for residential use or for development for such use of the land or
premises on which it is displayed consisting of a single board not exceeding
0.5 square metre in area, or of two joined boards together not exceeding 0.6
square metre in area, which, if displayed on a building, does not project from
the face of the building by more than one metre:
Provided that
nothing in paragraph (i) or (ii) — (i) shall permit more than one advertisement
to be displayed at any one time on the land or premises concerned: (ii) shall
authorise the display of an advertisement indicating that land or premises have
been sold or let other than by the addition to an existing advertisement of a
statement that a sale or letting has been agreed or that the land or premises
have been sold or let, subject to contract.
In this
paragraph — ‘area’ means the area of a single surface, whether or not both
surfaces of the relevant board are used for advertising; and ‘joined boards’
means boards joined at an angle so that only one surface of each is usable for
advertising.
This amendment
was relied on by the appellant as showing that under the 1984 regulations the
limit is one board per advertiser, not one board per house. Otherwise there
would have been no need for a change. I think this submission should be treated
with caution. The amendment may well represent a departmental view on the
effect of the 1984 regulations. But that view may not be correct, and the
varying interpretations put on the 1984 regulations by different local
authorities are good enough reason for putting the matter beyond doubt. So I
think we must concentrate our attention on the proper construction of the Act
and the 1984 regulations.
The appellant
contended that the offence created by section 109(2) of the Act was one of
displaying an advertisement in contravention of the 1984 regulations.
Regulation 14 of the 1984 regulations defined the classes of display which were
not to contravene the prohibition on display without consent. Class III(a)
contained a limitation on display, to one advertisement per sale. The appellant
was accordingly not in breach of the 1984 regulations because he displayed an
advertisement of the type described in Class III(a) and restricted himself to
display of one such advertisement in respect of his sale.
The respondent
contended that Class III(a) limited deemed consent to one sale board per house.
Even if several estate agents were instructed by the owner to find a purchaser,
it was still one and the same sale. That construction accorded with the purpose
of the 1984 regulations, which was (among other things) to prevent streets
becoming disfigured by a proliferation of estate agents’ boards.
The justices
concluded that the consent deemed to be granted under Class III(a) of
regulation 14 could not be for one board per advertiser. There would be deemed
consent for the first and only board, but no deemed consent once a second board
was displayed. I agree with that conclusion.
The offence created
by section 109(2) of the Act is to display an advertisement in contravention of
the provisions of the 1984 regulations. There is a contravention of the 1984
regulations if an advertisement is displayed without express or deemed consent.
There being no express consent, the appellant had to show deemed consent.
Consent for the display of his board would be deemed to be granted only if his
display was in accordance with any provision of the 1984 regulations permitting
display of his board without express consent. Class III(a) of regulation 14
permits display without express consent of advertisements relating to the sale
or letting of the land on which they are displayed limited to one advertisement
in respect of each such sale or letting. The vendor or lessor is the building
owner. He can only sell or let once. The 1984 regulations plainly limit the
building owner to one board. In my view they limit estate agents similarly. If
a second board is displayed the building owner and both agents commit an offence
because the limitation to one advertisement in respect of each such sale or
letting is exceeded. It cannot be said that each agent has only displayed one
board in respect of his sale or letting, because he is not selling or letting
at all but merely advertising the building’s owner’s willingness to sell or
let. It is, initially, surprising that an act, lawful when done, can become
unlawful as the result of something done by a stranger. But that is, in my
view, the effect of the 1984 regulations, and the 1987 amendment, in my view,
shows that Parliament is willing to impose a hard rule to achieve a result
regarded as desirable.
It was not
argued (I think rightly) that a first board erected with deemed consent
continues to enjoy that deemed consent even after the erection of a second
board if the second board was erected without deemed consent.
The appellant
advanced an alternative argument. If the correct interpretation of regulation
14 Class III(a) is that only one advertisement in total is permissible per sale
or letting, then (it was said) no offence can be committed in the absence of
knowledge by the defendant of the facts giving rise to the offence, namely that
the defendant is one of two persons each displaying a separate advertisement in
respect of a single sale or letting.
The respondent
submitted that section 109(2) created an absolute offence. Despite the general
presumption that a guilty mind must be proved to establish criminal liability,
it was argued that other sections of the Act have been construed as not
requiring proof of a guilty mind: Maidstone Borough Council v Mortimer
[1980] 3 All ER 552; R v Wells Street Metropolitan Stipendiary
Magistrate, ex parte Westminster City Council [1986] 1 WLR 1046. The
proviso to section 109(3), it was argued, showed that an offence under section
109(2) was not to require proof of mens rea.
The justices
held that section 109(2) created an absolute offence. I agree with them. The
offence is committed ‘if any person displays’ not ‘if any person knowingly
displays’. The very limited defence provided by the proviso to section 109(3),
if the defendant can establish it, is inconsistent with any general requirement
of mens rea. I cannot think Parliament intended to burden local
authorities with the task of showing what one estate agent knew about the
activities of another.
In agreement
with the justices, I conclude: (1) that deemed consent is limited to one
advertisement in total per sale or letting; (2) that a person alleged to be
displaying in contravention of the 1984 regulations may be properly convicted
even though he displayed his own advertisement with deemed consent and is
ignorant of the existence of a second board.
I would,
accordingly, dismiss this appeal.
Agreeing,
HUTCHISON J said: It seems at first sight surprising that an estate agent who
lawfully erects a board can find himself guilty of an offence when,
subsequently and without his knowledge, another agent erects a further board.
But I am persuaded, particularly on a consideration of the proviso to section
109(3), that Parliament must have intended that proof of mens rea was
not required in the case of offences under section 109(2).
It would seem
from what we have been told in this case that in general local authorities
prosecute estate agents rather than prospective vendors. The latter, of course,
since a board can only be erected by an agent with the consent of his principal
(and, anyway, such boards are obvious) will invariably have knowledge of the
commission of the offence. It may be thought that if, despite penalties to
which estate agents are subjected, offences are widespread, they would be more
effectively curtailed if houseowners were also prosecuted.
Estate agents
prepared to take the risk of erecting a second board, if they alone faced
prosecution, might well be deterred if they knew that their principals might
suffer the same indignity.
The appeal
was dismissed with costs. Certificate was granted as to point of general public
importance, but leave to appeal refused.
