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 is one of absolute liability
The appellant
was a partner in a firm of estate agents. He was convicted under section 109(2)
of the Town and Country Planning Act 1971 of two offences of displaying ‘for
sale’ boards without express consent and contrary to regulation 8 of the Town and
Country Planning (Control of Advertisements) Regulations 1984. The prosecutions
related to the sale of two properties. The appellant first erected his boards
and then at each property other agents later erected a further board. The
appellant was unaware of the later board at certainly one of the properties. It
was accepted that so long as only one board was displayed, regulation 14 of the
Town and Country Planning (Control of Advertisements) Regulations 1984 gave
deemed consent under Class III(a) to one advertisement for each sale or
letting. The Richmond upon Thames justices accepted the arguments of the
prosecution that once a second board was erected, neither board enjoyed deemed
consent, as Class III(a) authorises only one advertisement ‘in respect of
each such sale or letting’. The appellant appealed by way of a case stated
arguing that as he had displayed only one advertisement described in
Class III(a) in respect of his sale, he had committed no offence;
alternatively, if only one advertisement is permitted, no offence could be
committed in the absence of knowledge of the facts of the offence, namely
knowledge of the erection of a further board.
Held In dismissing the appeal, and in holding that
the appellant had been properly convicted by the Richmond upon Thames justices,
the Divisional Court decided that the justices had been correct in holding that
deemed consent is only available for one advertisement per sale and that
section 109(2) created an absolute offence, see p 112A-C. That subsection provides
that ‘if any person displays an advertisement’ he is guilty of an offence; it
does not say ‘if any person knowingly displays an advertisement’: see p
112F. The limited defence provided by the proviso in section 109(3), that a
person was not guilty if he could prove that the advertisement was without his
knowledge or consent, was inconsistent with any general requirement of mens
rea. Mens rea did not apply to this offence: see p 112F and H.
to in the judgments
Maidstone
Borough Council v Mortimer [1980] 3 All ER
552; (1980) 79 LGR 81; 43 P&CR 67; [1980] EGD 941; 256 EG 1013, [1980] 2
EGLR 155, DC.
R v Wells Street Metropolitan Stipendiary Magistrate, ex parte
Westminster City Council [1986] 1 WLR 1046; [1986] 3 All ER 4; (1986) 53
P&CR 421, DC.
Appeal by way
of case stated
This was 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.
Bergin (instructed by Axelrods, of Richmond) appeared for the appellant.
Lamming (instructed by Roger G Smith, of the solicitor’s department, Richmond
upon Thames London Borough Council) appeared for the prosecutor, the chief
executive and town clerk of the council.
following judgments were delivered.
BINGHAM LJ: 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 level 3 on the standard
scale and, in the case of a continuing offence, £ 20 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 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.
HUTCHISON J:
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
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 a point of law of
general public importance, but leave to appeal refused.
