Advertisement – Display – Town and Country Planning (Control of Advertisements)(England) Regulations 2007 – Advertisements displayed on site for many years – Appellant replacing existing display with digital version showing selection of advertisements – Respondents serving notice requiring removal of display – Whether material alteration in manner of use of site – Whether right to revert to former use – Appeal dismissed
The appellant operated an advertising display site, which had originally been used to display a static poster hoarding. Over the years, that was replaced with an illuminated display of rotating panels, followed, in 1998, by an illuminated scrolling display and, in 2002, by a static illuminated display (the golden square). In 2008, that was replaced with a taller digital display, with internal illumination, programmed to show a new advertisement every seven seconds. The respondent council served a notice, under section 11 of the London Local Authorities Act 1995, requiring the appellant to remove the new structure.
The appellant claimed that it had the benefit of deemed consent, having used the site for advertising without express consent for 10 years, pursuant to regulation 6 of, and Class 13 of Schedule 3 to, the Town and Country Planning (Control of Advertisements)(England) Regulations 2007. The respondents maintained that the new display fell within the exceptions to Class 13 since: (i) there had been a material alteration in the manner in which the site was used, within Class 13(1); or (ii) the new display was a “sequential display” within Class 13(4) that did not meet the conditions therein.
The appellant applied unsuccessfully for judicial review of the respondents’ decision to issue the notice. The High Court held that: (i) the replacement of the golden square by a digital hoarding was a material alteration in the manner of use; (ii) it was an advertisement that comprised a sequential display; and (iii) under the 2007 Regulations, the appellant had no right to revert to a former use that had previously enjoyed deemed consent: [2009] EWHC 465 (Admin); [2009] 22 EG 120.
The appellant appealed. The issues for determination were whether: (i) the judge’s approach to the issue of material alteration had been correct and sufficient evidence supported his finding; (ii) the digital hoarding was an advertisement that comprised sequential displays; (iii) a “right to revert” existed under the 2007 Regulations; and (iv) the respondents’ decision to serve a notice was unlawful.
Held: The appeal was dismissed.
(1) The judge’s finding of a material alteration was unassailable. Whether a material alteration had arisen in the use of the site was to be judged by reference to considerations of amenity and public safety, which were matters of fact for the judge. The evidence before the judge was sufficient to support his findings and reasons.
(2) The word “advertisement”, as defined in section 336(1) of the Town and Country Planning Act 1990, was capable of meaning both the image and the structure on which it was displayed. Either an animated display or a structure that displayed sequential images would fall within Class 13(4)(a). It would also fall within Class 13(4)(b) if it comprised moving parts or features. In that context, Class 13(4)(a) applied where the image changed and the expression “sequential displays” was apt to refer to any display where one image followed another. The judge was therefore right to hold that the case fell within Class 13(4)(a).
(3) The judge had been correct to find that the deemed consent could not be recovered by reverting to a former use. The 2007 Regulations did not provide for the “right to revert” to a previous use that had enjoyed deemed consent under Class 13; that contrasted with the position under the Town and Country Planning (Control of Advertisements) Regulations 1992, which the 2007 Regulations succeeded. Class 13(1) of the 2007 Regulations was directed to changes in the extent to which a site had been used and to alterations in the manner in which it had been used during the previous 10 years. If any such material change or alteration had occurred, the advertisement on the site fell outside Class 13 and did not enjoy deemed consent.
(4) The respondents had not acted unlawfully in exercising their discretion to serve a notice under section 11 of the 1995 Act. It was inherent in Class 13 that the site might have been used for advertising for many years, but that could not properly influence the respondents in favour of tolerating a use that had recently become unlawful, even though they had not objected to previous changes of use.
Andrew Fraser-Urquhart (instructed by Grant Saw Solicitors) appeared for the appellant; Robin Green (instructed by the legal department of Hammersmith and Fulham London Borough Council Treasury Solicitor) appeared for the respondents.
Eileen O’Grady, barrister
