Advertising hoardings – Town and Country Planning (Control of Advertisement) Regulations 1992 – Two-year express planning consent for hoardings – Hoardings altered substantially over subsequent years – Respondent council requiring their removal – Whether hoardings having deemed consent – Regulation 6(1) of and class 14 of Schedule 3 to 1992 Regulations – Whether right to revert to original configuration – Appeal dismissed
In 1991, the respondent council granted a two-year planning permission to the appellant’s predecessor in title to retain seven advertising hoardings on land at St George’s Circus, London SE1. The display was altered in later years, so that, by 1998, it consisted of eight hoardings, at a higher level from the ground that the original display, with gaps in between and with some hoardings in different positions. The respondents took the view that the hoardings had a damaging visual effect upon the area and served notices, under section 11 of the London Local Authorities Act 1995, requiring their removal.
The appellant sought judicial review of that decision, contending that the hoardings enjoyed deemed consent under regulation 6(1) of, and class 14 of Schedule 3 to, the Town and Country Planning (Control of Advertisement) Regulations 1992. Class 14 provided that a deemed consent would exist for “an advertisement displayed with express consent, after the expiry of that consent” and subject to the same conditions, provided that the site had been “continually used for the purpose since the expiry of the express consent”. The appellant submitted that either: (i) deemed consent existed for the current hoardings; or (ii) if not, there was a “right to revert” to the original display, which was a factor that the respondents should have taken into account when deciding whether to require the removal of the altered hoardings.
Dismissing the claim, the judge held that: (i) a deemed consent under class 14 arose only where the site had been used continually to display advertisements in accordance with the express consent, and not where the display had changed substantially, as it had in the instant case; and (ii) although there was lawful use of part of the site, which was occupied by one hoarding that had remained unchanged, that was insufficient to maintain deemed consent in respect of the rest of the site. On that basis, he held that there was no deemed consent for most of the current display and no right to revert to the original configuration. The appellant appealed on the issue of the right to revert.
Held: The appeal was dismissed.
No general right to revert existed within the law governing deemed consent. The appellant’s hoardings had to fall within the description in class 14 if they were to enjoy deemed consent. The seven altered hoardings did not fall within the description: they were not “advertisements displayed with express consent, after the expiry of that consent”. Nor would any replacement hoardings fall within that description, however similar they might be in size, design or appearance to the hoardings that were on the site at the time of the express grant of consent. That was because the express consent had been for the retention of a display that was already on the site at the time of the grant, and not for the erection of new hoardings. Accordingly, the new hoardings would not be “advertisements displayed with express consent” within class 14: R (on the application of Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council [2003] EWHC 1224 (Admin); [2004] JPL 820 considered.
Although, in other circumstances, a deemed consent under regulation 6(1) and class 14 might exist in respect of a new hoarding, it would always be necessary to show that the site had been used continually for the purpose for which express consent had been granted. Class 14 required consideration of the position throughout the period since the expiry of the express consent, and it was insufficient merely to ask whether, at the time the decision fell to be made, the site was being used for the purpose for which express consent had been granted. Accordingly, there was no right to revert.
Andrew Fraser-Urquhart (instructed by Grant Saw) appeared for the appellant; Richard Langham (instructed by the legal department of Southwark London Borough Council) appeared for the respondents.
Sally Dobson, barrister
