Display of advertisements – Class 13 of Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 – Appellant claiming advertisements displayed on wooden structures enjoying deemed planning consent on ground of 10 years’ continual use for that purpose within Class 13 – Application refused on ground of material breaks in relevant 10-year period when appellant removing advertisements at request of local planning authority – Whether such breaks precluding “continual” use – Whether unadorned wooden structures themselves constituting “advertisements” – Appeal dismissed
The appellant owned land beside a road junction. For a number of years, he had positioned advertisements for his retail business on the land, first by attaching them to wooden posts and later by displaying them on a large wooden structure. In February 2011, he applied for a lawful use certificate in respect of the advertising use, pursuant to section 191 of the Town and Country Planning Act 1990. He contended that the advertisements enjoyed deemed planning consent by virtue of Class 13 of Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, on the ground that they were displayed on a site that had been used continually for the display of advertisements without express consent for the preceding 10 years. The appellant’s application was dismissed by the local borough council and by a planning inspector on appeal to the defendant secretary of state.
The inspector found that there had been a material break in the use of the land for advertising purposes during the relevant 10-year period, when the appellant had removed the advertisements from time to time at the request of the borough council in order to avoid enforcement action. He concluded that, on each occasion, the reinstatement of the advertisements a few weeks later represented a new breach of planning control in respect of which the 10-year period started afresh.
The appellant brought proceedings under section 288 of the 1990 Act to quash the inspector’s decision. He contended that the inspector had wrongly based his decision on the provisions for immunity from enforcement in section 171B of the 1990 Act rather than on Class 13. He submitted that the word “continually”, in Class 13, meant “regularly occurring” and therefore allowed for short interruptions in advertising use; moreover, the wooden posts and structure had continued to be “advertisements” even during the periods when nothing was attached to them. The claim was dismissed in the court below; the appellant appealed.
Held: The appeal was dismissed.
(1) Although the inspector had focused on section 171B rather than Class 13, his findings were such as to take the case outside Class 13 in any event. There was no continual use as required by Class 13 where there had been a material break or breaks in use in the face of threatened enforcement action. In the circumstances of the case, nothing turned on the use of the word “continually” as opposed to “continuously”. The word “continual” meant that a thing was always happening; that it was very frequent and without cessation. The appellant had brought about cessations in the advertising specifically as a result of threatened enforcement action that would otherwise have ensued. Whenever he removed an advertisement in response to a threat of enforcement, there was a cessation in the advertising until he deemed it safe to resume. There was a real difference between an interruption caused by, for example, the taking down of an advertisement pending the anticipated arrival of another one, and a cessation such as had occurred in the instant case: Westminster City Council v Moran (1998) 77 P&CR 294; [1998] 4 PLR79 distinguished. The reason why a break in advertising use occurred was not irrelevant. An interruption in use that resulted from the threat of some form of legal sanction was qualitatively different from interruptions caused by the fact that the landowner at that time had no specific advertisement that it wished to display. In the former case, the landowner was positively accepting that its unlawful use had been discovered and should be stopped; in the latter there was no such acceptance and the interruption occurred simply for its own convenience. Interruptions of the former type would automatically bring the user period to an end, however short their duration.
That conclusion was supported by policy considerations. A local planning authority should not be deterred from “light touch” intervention and propelled into coercive action by enforcement notice, prosecution or injunction proceedings on the ground that time would otherwise continue to run for the purpose of Class 13.
(2) The wooden posts and later wooden structure did not continue to be advertisements for Class 13 purposes during the times when no advertisement was displayed on them. The relevant definition of “advertisement”, for the purpose of Class 13, was that in section 336(1) of the 1990 Act. Although that definition was broad, and covered a hoarding or similar structure used or designed or adapted for use for the display of advertisements, regard should also be had to the earlier part of the definition, referring to something that was employed wholly or partly for the use of advertisement, announcement or direction. During the periods when the appellant was displaying no advertisements, the unadorned structure was not employed wholly or partly for the purposes of advertisement since no product or service was being advertised by the unadorned structure. The broad definition of “advertisement” was intended to facilitate the control of advertising by guarding against the exploitation of loopholes; it was therefore a form of anti-avoidance measure and was not intended to benefit advertisers: Butler v Derby City Council [2005] EWHC 2835 (Admin); [2006] 1 WLR 1346; [2005] PLSCS 211 considered. Although the court’s interpretation in the instant case was at or near the limits of the permissible, it serve the purpose of the legislation and chimed with common sense.
Paul Tucker QC and John Hunter (instructed by DLA Piper UK LLP) appeared for the appellant; James Strachan (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
