Owner of public house placing boards bearing name of public house on highway to prevent illegal parking and allow deliveries – Whether obstruction of highway contrary to section 137 of the Highways Act 1980 – Whether consent for advertising deemed by virtue of class 13 of Schedule 3 to the Town and Country Planning (Control of Advertisements) Regulations 1992 – Magistrate dismissing summonses – High Court dismissing council’s appeal
The respondent was the owner of the Nags Head Public House, 53 Kinnerton Street, London SW1. When expecting deliveries he placed two boards bearing the name of the public house on the road in order to prevent other vehicles parking on the yellow line illegally. The boards were not outside the line of vehicles parked legally further along the road. On October 11 1996 the advertisement boards were seen by an officer of the appellant council. Subsequently, informations were preferred against the respondent that he, first, wilfully obstructed the free passage of the highway contrary to section 137 of the Highways Act 1980, and second, displayed an advertisement board in contravention of regulations 5 and 27 of the Town and Country Planning (Control of Advertisements) Regulations 1992. The stipendiary magistrate dismissed the first summons, finding that the respondent had not wilfully obstructed the free passage of the highway since, if anything, he was preventing an obstruction of the highway by his action. The magistrate also dismissed the second summons concluding that there had been continual use of the advertisement boards outside the public house since April 1 1974, and therefore there was “deemed consent” by virtue of class 13 of Schedule 3 to the 1992 Regulations. The appellants appealed by way of case stated contending, in relation to the first summons, that the magistrate had not been entitled to conclude that the obstruction of the highway had been reasonable since there was a yellow line and other persons apart from the respondent had been entitled to make use of the road space. It was contended in relation to the second summons that the magistrate had erred in finding that the site had been used “continually” for displaying an advertisement since April 1 1974.
Held The appeal was dismissed.
1. The question of whether the highway had been obstructed was one of fact and degree for a magistrate. That question included the issue of whether it had been reasonable. Although other shopkeepers had been entitled to park on the yellow line they would have been able to ask the respondent to remove the boards, which would have been easier than dealing with unauthorised parked vehicles. Therefore it was impossible to conclude that the magistrate’s decision on the first summons had been perverse.
2. The word “continually” had been specifically chosen by parliament so that class 13 of Schedule 3 to the 1992 Regulations encompassed advertising which was regularly recurring, irrespective of whether it was interrupted. Therefore, although there had been periods, sometimes of some months, when the boards had not been placed on the road, deemed consent did apply. The matter was ultimately one of fact and degree.
Suzanne Reeve (instructed by the solicitor to Westminster City Council) appeared for the appellants; the respondent appeared in person.