Town and country planning — Advertisement regulations — Display of advertisements in contravention of regulations — Whether owner and occupier of land upon which advertisements displayed without express consent not guilty of offence by proving advertisement displayed without his consent
The respondent
owner and occupier of land had given no express consent to the display of
advertisements on hoardings erected on its land of MD Ltd. Although the owner had had negotiations with
MD Ltd, these had not come to fruition and upon the respondent becoming aware
of the advertisement hoardings, it removed them as soon as it could. On those findings the justices concluded that
the advertisement hoarding was erected without the knowledge or consent of the
respondent who, by virtue of section 224(5) of the Town and Country Planning
Act 1990, was not guilty of an offence of displaying an advertisement. The appellant local planning authority
appealed by way of a case stated contending that it could not be a proper
defence to a charge under section 224(3) of the 1990 Act for a defendant owner
or occupier of land upon which advertisements have been displayed with its
knowledge that they were displayed without its knowledge or consent.
The Divisional Court in Merton London Borough Council v Edmonds
The Times July 6 1993 decided that in the context of the defence in section
224(5) of the 1990 Act the expression ‘knowledge or consent’ must be construed
disjunctively so that even though the person in question has, or acquires,
knowledge of a display, it is still open to him to seek to establish, the
burden being on him, that he did not and does not consent to it. That decision would be applied to this
appeal. On the facts found by the
justices it could not be said that the respondent had not established absence
of implicit consent.
The following
case is referred to in this report.
Merton
London Borough Council v Richard Edmonds The
Times, July 6 1993
This was an
appeal by way of a case stated by the applicants, Wycombe District Council,
from a decision of the justices for the county of Buckinghamshire acting in and
for the petty sessional division of Wycombe, who on October 20 1992 dismissed
informations preferred by the appellants against the respondent, Michael Shanly
Group Ltd, relating to the display of advertisements upon hoarding at Queen
Alexander Road, High Wycombe.
Charles Mynors
(instructed by the solicitor to Wycombe District Council) appeared on behalf of
the appellants; Philip Astor (instructed by Harold Benjamin & Collins, of
Harrow) represented the respondent.
Giving
judgment, MANN LJ said: There is before the court an appeal by way of
case stated. The appellants are Wycombe
District Council in their capacity as district planning authority. The respondent is Michael Shanly Group Ltd in
its capacity as owner and occupier of land at Queen Alexander Road, High
Wycombe. The case is stated by the
justices for the county of Buckinghamshire acting in and for the petty
sessional division of Wycombe in respect of their adjudication as a
magistrates’ court sitting at High Wycombe on October 20 1992. On that day, the justices had before them
three informations which had been preferred by the appellant authority against
the respondent company. Each information
related to the display of advertisements upon a hoarding located on the land
owned and occupied by the respondent company.
The
informations related to three different dates.
That is to say, March 26, April 8 and June 2 1992. The display of advertisements, such as were
these, was subject to planning control.
It is an offence to display an advertisement in contravention of
regulations made under section 220 of the Town and Country Planning Act
1990. The offence is constituted by
section 224(3) of that Act.
The
regulations currently in force are the Town and Country Planning (Control of
Advertisements) Regulations 1992 (SI 1992 No 666). Those came into force on April 6 1992,
replacing regulations of the same name made in 1989, but which were in very
similar terms. Strictly, the offence
alleged on March 26 was a contravention of the earlier regulations, but nothing
turns upon that.
By virtue of
regulation 3, paras 2 and 5, either deemed or expressed consent is required for
the display of an advertisement unless it comes within one or more of the
classes set forth in the Schedule to the regulations. None of those classes is relevant in the
present case. Nor are the provisions in
relation to deemed consent.
The
advertisements displayed on March 26, April 8 and June 2 had no express
consent. Their display was, accordingly,
a display in contravention of the regulation.
Section 224(4)
of the 1990 Act provides that:
Without
prejudice to the generality of subsection (3), a person shall be deemed to
display an advertisement for the purposes of that subsection if —
(a) he is the owner or occupier of the land on
which the advertisement is displayed; or
(b) the advertisement gives publicity to his
goods, trade, business or other concerns.
Section 224(5)
provides that:
A person shall
not be guilty of an offence under subsection (3) by reason only —
(a) of his being the owner or occupier of the
land on which an advertisement is displayed; or
(b) of his goods, trade, business or other
concerns being given publicity by the advertisement.
if he proves
that it was displayed without his knowledge or consent.
The phrase
‘knowledge or consent’ is the phrase which has agitated argument in this
appeal.
Upon the facts
as found by the justices, the respondent knew of the display of advertisements
on March 27 when the display was bought to its attention by the appellant’s
enforcement officer.
The justices
found that the respondent had given no express consent to the display of
advertisments in that negotiations with an advertising company named Motivation
Display Ltd had not come to fruition.
Despite the absence of fruition, Motivation Display Ltd erected a
hoarding and posted the advertisments.
They have been separately prosecuted in respect of those activities.
The justices
found that the respondent company, ‘did everything in their power to have
Motivation Display Ltd, the owners of the sign to remove it’ and also, that ‘The
respondent took the hoarding down as soon as they could’. In the light of those findings, the justices
concluded that:
The
advertising hoarding was erected without the knowledge or consent of the
respondent and that the respondent took all proper steps, in the circumstances,
to remove the advertisements once their attention had been drawn to them, and
accordingly dismissed the informations.
The case was
stated at the request of the planning authority and the question posed by the
justices was whether:
In view of the
production of apparently uncontested evidence:
(a) as to status of the defendant or owner or
occupier of the relevant land;
(b) as to the display on the land of
advertisements in contravention of the Town and Country (Control of
Advertisements) Regulations 1992, and
(c) as to the knowledge of the defendant as to
the existence of that display, it was a proper defence to charge under section
224(3) of the Town and Country Planning Act for the defendant to argue that
those advertisements were displayed without its knowledge or consent, and
whether there
was any or any sufficient evidence adduced to support any other defence
justifying the acquittal of the defendant.
Mr Charles
Mynors, on behalf of the local planning authority, had two submissions. First, that the defence was not established
unless the defendant could establish that he did not know and did not
consent. The second argument was that
if, despite knowledge, lack of consent was a defence then in this case there
was consent.
The first argument
can be attractively deployed and is plainly a tenable one. However, since the case was stated, this
court in Merton London Borough Council v Richard Edmonds,
reported in The Times, July 6 1993, has decided the matter. The judgment was given on June 23 1993. We have the advantage of an unapproved
transcript of the leading judgment which was given by Buckley J. In it he refers to the argument on which Mr
Mynors sought to rely. He said:
As a pure
matter of language, I confess my first thought was, that the proper
construction was conjunctive, but one must look at the overall purpose of the
Act, one must consider whether that would be manifest and see how it would
work. Various examples were canvassed in
argument, but it seems to me that someone to become in these circumstances,
guilty of a criminal offence simply on acquiring knowledge of a particular
state of affairs for which they were not responsible would be quite contrary to
the fundamental principles of our criminal law.
A little later
he says:
My conclusion
is that in the context of this particular Act, ‘knowledge or consent’ as it
appears in section 224(5) must be construed disjunctively so that even though
the person in question has, or acquires, knowledge of a display, it is still
open to him to seek to establish, the burden being on him, that he did not and
does not consent to it.
Kennedy LJ is
expressed as agreeing. This court, while
not strictly bound by its own previous decisions, will not depart from them
unless they are plainly wrong.
I find it
impossible to say that that decision is plainly wrong. It effectively disposes of Mr Mynors’ first
argument. I turn to his second argument
which is that in this case the respondent had not established absence of
consent. In regard to consent, it seems
to me that consent may be either expressed or implicit from circumstances.
There was,
here, no question of express consent because the
consent which the respondent had failed to disprove, the onus being upon it by
virtue of section 101 of the Magistrates’ Court Act 1980. However, it seems to me that an impossible
obstacle to this submission is presented by the justices’ findings of fact. In particular the finding that the hoarding
was taken down as soon as the respondent could.
It follows
that, in my judgment, the justices were entirely right to conclude that the
defence was available on the basis that the respondent had successfully established
the fact, albeit, it had knowledge, that it did not consent either expressly or
impliedly to the display of the advertisement.
I would accordingly answer the question posed by the justices ‘Yes’ and
dismiss this appeal.
Agreeing, SEDLEY
J said: I would add this. Since, as
Mann LJ has said, the issue is certainly arguable either way, the recent
decision of this court in Edmonds v Merton London Borough Council
concludes the present appeal.
That decision,
as appears from the draft judgment which we have seen, is founded on the
holding that an interpretation of section 224(5) which treats knowledge alone
as sufficient to establish guilt runs contrary to the fundamental principles of
criminal law. From this flows the
argument that the subsection requires that there be both knowledge and consent
before an offence is committed.
Therefore an absence of either offence affords an offence.
The contrary
argument, which, in my view, is a respectable one, is that once a person is
deemed by section 224(3) to have displayed an advertisement without planning
consent by virtue of his being the owner or occupier of the land for the
special defence under section 224(5) the defendant must then show that the
display occurred on the date charged without his knowledge and without his
consent.
On this view,
neither absence of knowledge alone or absence or consent alone would be a
defence. Both must be proved by the
defendant.
The objection
that this would mean that a person loses the defence the moment he learns of
the display, and that it is wrong that a person should be found to be a
criminal without time to act, would on that view be met by the ample power
which the justices have in terms of disposal as to costs to reflect the
justices’ view of an overhasty prosecution.
However, the decision of this court to the contrary means that this
appeal must fail.
In any event,
even if the reverse were the case, the finding of the justices that the
respondent took the hoarding down as soon as it could even if it was generous
on the evidence would be practically bound to lead to an absolute discharge on
the particular facts. For those reasons,
I respectfully agree with Mann LJ’s conclusions.
Appeal
dismissed.