Advertisements 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,
an estate agent, received instructions to sell two properties and displayed a
‘for sale’ board outside each property. In respect of each property his board
was the first to be displayed. The owners of the properties each instructed a
second agent and these agents erected their boards on the two 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 by the Divisional Court ([1988] 2 PLR 108) on the ground that the
1984 Regulations permitted the display of only one board per sale or letting
and that where two boards were displayed, neither is then permitted. The
appellant appealed direct to the House of Lords on a point of law of general
public importance.
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 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: see p 105B.
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 the
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 than one is displayed consisting of a
board . . .’.: see p 105F. The new amended regulations, the Town and Country
Planning (Control of Advertisements) (Amendment No 2) Regulations 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: see p 106G.
referred in the opinions
Appeal against
decision of the High Court
This was an
appeal, under section 12 of the Administration of Justice Act 1969, against a decision
of the Divisional Court of the Queen’s Bench Division of the High Court
(Bingham LJ and Hutchison J) [1988] 2 PLR 108, who had dismissed an appeal by
way of a case stated from a decision of the Richmond upon Thames magistrates to
convict the appellant of an offence under section 109(2) of the Town and
Country Planning Act 1971.
Reynold QC and Terence Berg (instructed by Axelrods of Richmond) appeared for
the appellant.
Lamming (instructed by G S McGowan) appeared for the respondent prosecutor, the
chief executive and town clerk of Richmond upon Thames London Borough Council.
following opinions were delivered.
LORD KEITH
OF KINKEL: My Lords, I have had the opportunity of
considering in draft the speech to be delivered by my noble and learned friend,
Lord Griffiths. I agree with it and for the reasons he gives would allow the
appeal.
LORD
ELWYN-JONES: My Lords, I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord Griffiths. I
agree with it and for the reasons which he has given I too would allow this
appeal.
LORD
BRANDON OF OAKBROOK: My Lords, For the reasons to
be given by my noble and learned friend, Lord Griffiths, I would allow the
appeal.
LORD
GRIFFITHS: My Lords, The certified question to be
answered in this appeal is in the following form:
If an estate
agent, instructed to sell or let a residential property, displays a board
outside the property no other being at that time displayed, does he commit an
offence if another agent (to his knowledge or without it) thereafter displays a
second?
In other words,
the question for your lordships is whether on the true construction of the
relevant legislation an estate agent who lawfully places a ‘for sale’ board on
a property should be held to have committed a criminal offence because another
estate agent unlawfully and without the knowledge or consent of the first
estate agent places a second ‘for sale’ board upon the same property. I suggest
that any layman would not hesitate to answer ‘no; Parliament cannot have
intended such an unjust and absurd result’. Unfortunately, the legislation
poses a more difficult problem of construction for the lawyer which is raised
by the following facts.
The appellant
is an estate agent who, after receiving instructions to sell two properties in
Richmond, displayed a ‘for sale’ board outside 18 The Vineyard, Richmond, in
November 1986 and another ‘for sale’ board outside 25-28 The Hermitage,
Richmond, in January 1987. In the case of each property the appellant’s boards
were the first to be displayed. Thereafter the owners of the properties each
instructed a second estate agent and these estate agents erected their own
boards on the properties without the knowledge or consent of the appellant.
On February 23
1987 the respondent, acting on behalf of the local authority, laid informations
relating to each house against the appellant and against the other two estate
agents. Each information charged the offence in the following terms:
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 (SI 1984 no 421) contrary to
regulation 8 of the said regulations and section 109(2) of the Town and Country
Planning Act 1971.
The other two
estate agents, who had erected their signs after the appellant, each pleaded
guilty and were fined £ 100 in respect of each information. The appellant
pleaded not guilty, but was found guilty by the magistrates, who
The appellant
appealed by way of case stated to the Divisional Court [1988] 2 All ER 449, who
dismissed the appeal. Before the Divisional Court the appellant submitted two
arguments: first, that the regulations permitted one board per advertiser and
not one board per house; this construction was rejected by the Divisional Court
and has not been pursued before your lordships; second, that, upon the
assumption that only one advertisement is permitted per sale or letting, no
offence is committed unless it is proved that the defendant knew that two
boards were displayed on the premises; this construction was also rejected by
the Divisional Court and it, too, has not been pursued. The argument upon which
the appellant now relies was not presented to the Divisional Court, although it
was referred to in passing by Bingham LJ, who said at p 453:
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.
It is now
necessary to set out the relevant legislation which I take from the judgment of
Bingham LJ, at pp 450-451:
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 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 and, in the case of a continuing
offence, £ 40 for each day during which the offence continues after
conviction.’
Regulation 8
of the Town and Country Planning (Control of Advertisements) Regulations 1984
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 this court lies in the 1984 regulations. Regulation 6(1),
(2) and (3), so far as relevant, provides:
‘(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 the certain local events, specify a maximum area of advertisement
only.
Now the first
feature of this legislation to which I would draw attention is that Parliament
did not wish a person to be convicted of an offence if an advertisement were
displayed on his land or giving him publicity when it was displayed without his
knowledge or consent: see the proviso to section 109(3). It is true that the
burden of proving this defence is placed upon the defendant, but it should not
be difficult to discharge in a genuine case. It would therefore seem unlikely
that Parliament would have intended to create an offence of strict liability in
relation to advertisements without giving an opportunity to the advertiser to
escape liability by proving that he was blameless — but such is the effect of
the regulations as they have so far been construed.
Let me
demonstrate one extraordinary result that would follow from this construction.
As is well known, there are companies that specialise in the erection of sale
boards. Let us suppose that such a company mistakenly places a sale board on
property A which estate agent X has instructed them to place on property B. Let
it also be assumed that at the time the board was erected the sale board of
another estate agent Y was already in place on property A and had been placed
there with deemed consent pursuant to the regulations. The local authority then
prosecutes both estate agents because there are two boards displayed on the
property. Estate agent X escapes conviction because he proves that his board
had been erected on property A without his knowledge and consent. But estate
agent Y is convicted because his board was erected with his knowledge and
consent and he cannot take advantage of the mistaken erection of the second
board. So X is protected from conviction by the mistake of his agent but that
same mistake makes Y guilty of a criminal offence.
The difficulty
of construction is created by the fact that in regulation 14 class III(a)
limits the deemed consent in respect of each sale or letting to one
advertisement. The local authority therefore argues that if there are two
advertisements in respect of the same sale there is no deemed consent in
respect of either of them. However, in my view these 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 unlawful display of subsequent boards. I
would therefore, as a matter of necessary implication, read para (a) of
class III as if it contained the following italicised words:
(a) 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 that being the first
advertisement displayed when more than one is displayed consisting of a
board (whether or not attached to a building) not exceeding two square metres
in area, or of two conjoined boards, together not exceeding 2.3 square metres
in area; no such advertisement, when displayed on a building, to project
further than one metre from the face of the building.
It was
submitted on behalf of the local authority that such a construction
would raise grave practical difficulties in enforcing the legislation because
of the difficulty of proving which board was erected first. I appreciate the
effort that will be required of local authorities to enforce these regulations
and thus to reduce the unsightly proliferation of estate agents’ boards that
now deface many streets, but I cannot believe that in the vast majority of
cases it will not be possible to establish which board was erected first by a
simple inquiry from the owner of the property or from the estate agents themselves
or from the records of the company that erected the boards. Of course it would
be easier to bring every estate agent before the court and find them all
guilty, but to accept such a construction would, in my view, be to promote
injustice in the interests of administrative convenience, and I cannot believe
that it was the intention of the Secretary of State to invite Parliament to
approve regulations that would provide for such a result.
The respondent
also placed reliance upon the wording of the substituted definition of class
III(a) contained in the Town and Country Planning (Control of
Advertisements) (Amendment No 2) Regulations 1987 which was due to come into
force on October 28 1988. The new definition of class III(a) now reads:
(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 two 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.
The respondent
points in particular to the words of subpara (i) of the proviso and submits
that, whatever view might be taken of the construction of the Regulations of
1984, the amended regulations now make it plain that permission is limited to
one advertisement and therefore a deemed permission for the first advertisement
cannot survive once a second advertisement is displayed. From this it is argued
that Parliament has now made it plain that it was prepared in the interests of
enforcing the legislation to impose a harsh and possibly unjust result on the
first advertiser and therefore your lordships should not shrink from so
construing the Regulations of 1984 to produce the same result.
My lords, I do
not accept this construction of the Regulations of 1987. As I read the
explanatory note to the amendment, it was introduced to scotch the argument
advanced in this case in the Divisional Court to the effect that the
regulations permitted each advertiser to have one board rather than limit the
permission to one board for each sale or letting. It is now clear beyond
peradventure that the deemed consent is limited to one board at any one time.
Nevertheless, I would read the amended regulations as subject to a similar
implication so that the first advertisement attracted the deemed consent and
was not lost by the unlawful erection of subsequent sale boards.
The courts
should surely be slow to impute to Parliament so harsh an intention as to
impose criminal liability on a citizen acting lawfully because another citizen,
over whom he has no control, acts unlawfully. We are dealing here with
delegated legislation which does not receive the scrutiny of primary
legislation and if in the interests of administrative convenience such an
apparently unjust rule is to be introduced it should be in the clearest
possible language so that the purport of the legislation can be readily
recognised and the need for such a measure can be carefully considered before
it is approved.
My lords, in
the absence of such clear language, I am quite unable to impute to the
Secretary of State or Parliament the intention that an estate agent in the
position of the appellant should be held guilty of a criminal offence. I would
therefore answer the certified question in the negative and allow this appeal
with costs in this House.
LORD GOFF
OF CHIEVELEY: My Lords, For the reasons given by my
noble and learned friend, Lord Griffiths, I would allow this appeal.
Appeal
allowed.
