Business premises – Advertising – Consent – Respondent displaying advertising hoardings on property without express consent – Appellant council prosecuting respondent for display without consent contrary to planning regulations — District judge finding that respondent having deemed consent from 10 years’ use – Whether judge erring in law — Appeal allowed
On five separate occasions, between June and November 2009, the respondent company had used its commercial premises to display advertising hoardings without obtaining express consent under the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (SI 2007/783). The appellant local authority issued a summons against the respondent alleging offences contrary to section 224(3) of the Town and Country Planning Act 1990.
The respondent argued that it had the benefit of deemed consent under Class 13 of Schedule 3 to the 1990 Act since the site had been used for the display of advertisements for at least 10 years without express consent. In particular, a 3m by 6m 48-sheet hoarding had been used since the 1970s apart from a period between 2001 and 2003, when it was replaced by a 3m2 by 3m2 hoarding and in 2005, when no advertisements had been displayed.
On the evidence, the district judge concluded that neither the changes in size and shape nor a change in the method of illumination constituted a material change for the purposes of the 2007 Regulations so that the advertisements had the benefit of deemed consent. Accordingly, the respondent was found not guilty.
The appellants appealed by way of case stated. The questions for the court were whether the judge had erred: (i) in finding that the extent of the use of the site for displaying advertisements had not materially increased; (ii) in finding that the appellants had failed to prove that the change in the method of illumination had not been a material alteration; and (iii) if so, in treating the question of whether that change was a material consideration that the appellants had to prove before the respondent could be convicted.
Held: The appeal was allowed.
(1) The judge had erred in finding that the extent of the use of the site had not materially increased. Although changing the size and shape of the hoarding did not alter the use of a site per se whatever leeway might be allowed by way of non-material alteration, the doubling in size of an advertisement from 9m2 to 18m2 must be a material increase on any basis. The change in size and shape had not been temporary. Accordingly, all the conditions for the application of Class 13 of Schedule 3 to the 2007 Regulations had not been met.
(2) The judge had erred in finding that the appellants had failed to prove that a change in the method of illumination was a material alteration since it was not for him to decide whether that change was a material alteration that adversely affected the amenity of the area: R (on the application of Clear Channel UK Ltd) v Hammersmith and Fulham London Borough Council [2009] EWHC 465 (Admin); [2009] 2 EGLR 2; [2009] 22 EG 120 considered.
(3) The judge had erred in treating the issue regarding a change in illumination as one that the appellants had to prove in order for the respondent to be convicted. He had wrongly thought that the appellants were obliged to provide technical and expert evidence in respect of the methods of illumination, whereas it was for the respondent alleging deemed consent to produce evidence of compliance with the conditions in Class 13. It was not for the appellants to prove that a material alteration had occurred or that the change had affected the local amenity.
Richard Turney (instructed by ASB Law LLP, of Maidstone) appeared for the appellants; the respondent appeared in person by its representative.
Eileen O’Grady, barrister
