Display of advertisement – Deemed consent – Town and Country Planning (Control of Advertisements)(England) Regulations 2007 – London Local Authorities Act 1995 – Advertisements displayed on site for many years – Claimant replacing existing display with digital display showing selection of advertisements for several seconds each – Defendants serving notice under section 11 of 1995 Act requiring removal of display – Whether deemed consent existing for display – Whether right to revert to previous display – Claim dismissed
The claimant operated an advertising display site in Fulham, London SW6, which had been used for that purpose for many years. The site had originally been used for displaying 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. In 2008, that was replaced with a taller digital display, with internal illumination that was programmed to display a new advertisement from a selection every seven seconds. The defendant council served a notice, under section 11 of the London Local Authorities Act 1995, requiring the claimant to remove the new structure.
The claimant claimed that it had the benefit of a deemed consent for the display, by virtue of the use of the site for advertising without express consent over the previous 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 defendants maintained that the new display fell within the exceptions to Class 13 since: (i) there had been a material increase in the manner in which the site was used for the display of advertisements, within the meaning of Class 13(1); or (ii) the new display was a “sequential display” within Class 13(4) that did not meet the conditions of that paragraph.
The claimant sought judicial review of the defendants’ decision to issue the notice. It contended that: (i) the changes to the display were not “material”; (ii) the display was not a sequential display, since that word connoted items that were in some way related to each other following in some sort of order, whereas there was no connection between the various advertisements shown on the display; and (iii) even if there was no deemed consent, the defendants should have refrained from serving a notice under section 11 without first asking the claimant to remove the objectionable elements and revert to the permitted display.
Held: The claim was dismissed.
(1) An alteration to a display would be “material” for the purpose of the 2007 Regulations where it was capable of affecting amenity and public safety. The alteration carried out by the claimant was material by virtue of its size, bulk, position and the nature of the structure, which made it markedly more obtrusive, and by virtue of the nature of its illumination and the changing nature of the display, whereby the display was very bright at one moment and then suddenly dark at others. A display of that nature affected amenity in a way that constant, fixed illumination would not. Were the claimant to apply for consent for the display, rational people could reasonably lodge objections on amenity grounds.
(2) Although the word “sequential” implied some kind of order, it was not necessary that the items should be related to each other or even follow each other in a fixed order. A number of separate advertisements displayed in a randomised way for several seconds each could be sequential within Class 13(4) if the display was required to show each for an equal amount of time during the day or week overall. The claimant’s actual display, in which the advertisements followed in the same order for the same length of time each, was a sequential display.
(3) The defendants had not been obliged, before serving the section 11 notice requiring the removal of the entire display, to consider permitting the claimant to revert to its previous display. Under the 2007 Regulations, there was no “right to revert” to a previous use that had enjoyed Class 13 deemed consent before its replacement with the objectionable display; this was in contrast with the position under the Town and Country Planning (Control of Advertisements) Regulations 1992, which the 2007 Regulations succeeded: R (on the application of Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council [2003] EWHC 1224 (Admin); [2004] JPL 820 distinguished. Once a display was in place that fell outside the deemed consent provisions of Class 13, the previous deemed consent would be lost. This followed from the different wording of Class 13 in the 2007 Regulations, excluding a display from deemed consent where there “has been”, rather than where there “is”, a material alteration. It was not possible to change the past; a deemed consent would be lost if, historically, there had been a material alteration.
Andrew Fraser-Urquart (instructed by Grant Saw & Sons) appeared for the claimant; Robin Green (instructed by the legal department of Hammersmith and Fulham London Borough Council) appeared for the defendants.
Sally Dobson, barrister