Advertisement control regulations — One advertisement per sale or letting permitted without express consent — Two agents displayed “for sale” boards — Whether first agent to display board properly convicted even where ignorant of second agent’s board — Whether offence one of strict liability
The appellant is an estate agent who, after receiving instructions to sell two properties, displayed two “for sale” boards outside the properties. In the case of each property his boards were the first to be displayed. The owners of the properties each instructed a second agent and these agents erected their boards on the properties without the appellant’s knowledge or consent.
The appellant was convicted under section 109(2) of the Town and Country Planning Act 1971 of two offences of displaying the boards contrary to the Town and Country Planning (Control of Advertisements) Regulations 1984. The appellant’s appeal against conviction was dismissed ([1988] 2 PLR 108) on the ground that the 1984 Regulations permitted the display of only one board per sale and that where two boards are displayed, neither is then permitted. The appellant appealed direct to the House of Lords on a point of law of general public importance.
Held The appeal was allowed. Class III(a) in regulation 14 of the 1984 Regulations permits “in respect of each … sale or letting … one advertisement consisting of a board …”. Parliament provided a defence in section 109(3) of the 1971 Act to a person where an advertisement was displayed on his land or gave him publicity and the display was without his knowledge or consent. It therefore seems unlikely that Parliament would have intended to create an offence of strict liability without giving an opportunity for the advertiser to escape liability by proving he was blameless.
The regulations only make sense and do justice if they are read as continuing the deemed consent for the display of the first board despite the display of subsequent boards. It is a matter of necessary implication that Class III(a) should be read as if it contained the following italicised words: “in respect of each … sale or letting … one advertisement that being the first advertisement displayed when more that one is displayed consisting of a board …”. The new amended regulations, the Town and Country Planning (Control of Advertisements) (Amendment No 2) Order 1987, which now apply to estate agents’ boards, should also be read as subject to similar implication so that the first advertisement attracts the deemed consent and this is not lost by the unlawful erection of subsequent boards.
Frederic Reynold QC and Terence Bergin (instructed by Axelrods, of Richmond, Surrey) appeared for the appellant; and David Lamming (instructed by the solicitor to Richmond upon Thames London Borough Council) appeared for the respondent prosecutor, the chief executive and town clerk of the council.