England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr N Baker QC
(sitting as a deputy High Court judge)

		Royal Courts of Justice Strand London WC2 Friday 4th May, 2001

1. LORD JUSTICE PILL: Lord Justice Dyson will give the first judgment.
2. LORD JUSTICE DYSON: This is an appeal by the second defendant from the decision of Mr Nigel Baker QC sitting as a deputy High Court judge whereby he granted an injunction (a) restraining the defendants from causing, suffering, permitting or assisting in the display of advertisements other than in compliance with the Town and Country Planning (Control of Advertisements) Regulations 1992 ("the 1992 Regulations"), and (b) that the first two defendants permanently remove from the Harvey Nichols Department Store, at 109-125 Knightsbridge, London, and the adjoining highway the shroud advertisement displayed there. Before I come to the short issues that arise on this appeal, I need to set out the relevant facts.

The facts

3. The highway which runs along the Harvey Nichols store to the north is Knightsbridge, and to the east is Seville Street. The first defendant started to carry out a major programme of external repairs to the store in 2000. The repairs were carried out in stages, and required that the building be surrounded by scaffolding, so that work could be carried out to the upper parts of the elevations of the building. The scaffolding included a safety screen to protect passers-by from falling debris. On 31st August 2000, the Council granted the first defendant a scaffold licence for the Seville Street side of the building pursuant to section 169 of the Highways Act 1980. In about September 2000 the scaffold was erected on the Seville Street elevation. The works to that elevation were completed and the scaffolding struck in December 2000.
4. On 10th January 2001, the Council granted the first defendant a scaffold licence, again under section 169 of the Highways Act 1980, in respect of the Knightsbridge elevation to the store for the period 10th January to 1st July 2001. Condition 4 of the licence was in these terms:

"4. Fans and screens shall be provided of such width and at such height as shall completely protect the public and vehicles and prevent materials of any kind including substances used in connection with the cleaning of the building exterior, falling upon the carriageway or footway outside the hoarding."

5. The defendants believed that they did not require consent for the advertisement that they proposed to display on the screen of the scaffolding. Accordingly, when the scaffolding was erected, it included an imaged safety screen. It is this screen that has given rise to the present proceedings. The screen is made of PVC and is a single skin sheet constructed in three sections. Its dimensions are approximately 55m x 15m. The sheet is printed in various colours in one manufacturing process, and the image is digitally incorporated into the sheet. The image is not painted, glued on, attached to or in any way affixed to the sheet. It is an integral part of the PVC sheet. The screen itself is fixed to the scaffold by means of specialist ties tied to fixed poles on the scaffold and attached to eyelets which are punched into the sheet. The image is of products made by the fashion house Versace, whose products are sold in the store and in the neighbouring store of Harrods. The unchallenged evidence of Mr Evans on behalf of the second defendant was that it would take between 10 and 14 days to remove and replace the screen with a different one.
6. In his first witness statement Mr Adamcyck, the Senior Enforcement Officer in the Council's Planning and Conservation Department, explains the Council's attitude to the advertisement on the Knightsbridge elevation. He says that, because of its large size, which is out of scale with its surroundings, the advertisement tends to distract motorists. Accordingly, in the opinion of the Council, the display of the advertisement causes harm to amenity and public safety. It is accepted by the Council that a scaffold such as that erected on the Knightsbridge elevation requires a protective covering. Indeed they imposed a condition to that effect. There is no objection to the PVC material of which it is made. The objection is to the advertisement image that is incorporated in the material.

The relevant statutory provisions

7. Section 55(1) of the Town and Country Planning Act 1990 provides:

"Subject to the following provisions of this section, in this Act, except where the context otherwise requires, `development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."

8. Subsection (5) provides:

"Without prejudice to any regulations made under the provisions of this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building."

9. The word "building" is defined in section 336(1) as follows:

"`building' includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building;"

10. Chapter III of Part III of the 1990 Act deals with advertisements. Section 220(1) empowers the Secretary of State to make regulations for restricting or regulating the display of advertisements. Section 222 provides:

"Where the display of advertisements in accordance with regulations made under section 220 involves development of land-

(a) planning permission for that development shall be deemed to be granted by virtue of this section, and

(b) no application shall be necessary for that development under Part III."

11. Section 224(3) provides:

"Without prejudice to any provisions included in such regulations by virtue of subsection (1) or (2), if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence ..."

12. The 1992 Regulations were made pursuant to section 220(1) of the 1990 Act. Regulation 5 provides as follows:

"(1) No advertisement may be displayed without consent granted by the local planning authority or by the Secretary of State on an application in that behalf (referred to in these Regulations as `express consent'), or granted by regulation 6 (referred to in these Regulations as `deemed consent'), except an advertisement displayed in accordance with paragraph (2) below.

(2) The display-

(a) outside any area of special control, of such an advertisement as is mentioned in regulation 3(2); or

(b) within an area of special control, of such an advertisement as is so mentioned, other than one falling within Class A in Schedule 2

is in accordance with this paragraph."

13. The area in question is an area of "special control". Regulation 3(2) provides:

"Parts II and III of these Regulations do not apply to any advertisement falling within a description set out in Schedule 2 provided it complies with any conditions and limitations specified in that Schedule; ..."

14. Class D of Schedule 2 gives the following description of advertisement: "An advertisement incorporated in the fabric of a building" and under the heading "Conditions, limitations and interpretation" provides as follows:

"1. The building or any external face of it is not used principally for the display of advertisements.

2. For the purposes of Class D-

(a) an advertisement fixed to, or painted on, a building is not to be regarded as incorporated in its fabric;

(b) a hoarding or similar structure is to be regarding as a building used principally for the display of advertisements."

The judgment

15. The judge held that the advertisement was unlawfully displayed since it had not been authorised by the Council. He rejected the submission that the scaffold was a "building" within the meaning of section 336(1). He held that the advertisement was not incorporated into the fabric of a building, and that, since the display of the advertisement had not been the subject of a grant of planning permission, it was unauthorised as being in breach of planning control. Finally, he considered whether to grant injunctive relief, and in the exercise of his discretion granted the injunctions to which I have earlier referred.

Grounds of appeal

16. The grounds of appeal for which permission has been given are that the judge wrongly held (a) that a scaffold was not a "building" within the meaning of section 336(1) of the 1990 Act; and (b) that because the PVC screen was fixed with ties to the steel frame of the scaffold, it could not itself be part of the fabric of the scaffold. He should have held that the scaffold was a building and that the screen was incorporated into its fabric. He should then have gone on to hold that Class D of Schedule 2 to the 1992 Regulations applied, and that the advertisement displayed on the screen did not require express consent, since it was deemed to have been granted by section 222 of the 1990 Act. There were other grounds of appeal all of which related to the approach adopted by the judge to the question whether to grant injunctive relief.

Questions of jurisdiction and discretion

17. Latham LJ refused permission to advance these grounds. But the second defendant has renewed its application to argue them before us. I shall deal first with the points that the second defendant has been given permission to argue.

Discussion

18. Mr Coppell's submission proceeds by the following steps. First, the scaffold was a "building" since it was a "structure" which is part of the definition of "building" in section 336(1). When regard is had to the size of the scaffold erected on the Knightsbridge elevation, the fact that it is erected on site, and the length of time that it would take to erect and dismantle, he submits it is plain that it is a structure. Moreover, he submits, it is not "plant or machinery comprised in the building" and therefore does not fall within the exception in the definition of "building". Secondly, the advertisement is an integral part of the screen. Thirdly, the judge should have found that the screen is an integral part of the scaffold and is therefore incorporated in the fabric of the building comprised in the scaffold. Fourthly, since the advertisement is, therefore, incorporated in the scaffold, and since the scaffold or screen is not used principally for the display of advertisements, it did not require consent.
19. In further support of his argument that the scaffold was a "building", Mr Coppell relies on the provisions of Class A of Part 4 of the Town and Country (General Permitted Development) Order 1995 which defines permitted development as including:

"A. The provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried on, in, under or over that land or on land adjoining that land."

20. On behalf of the Council, Mr Powell submits that the scaffold is not a "building" within the meaning of section 336(1). Whether something is a building is a question of fact and degree, and this court should be slow to interfere with the finding of the judge at first instance on such an issue. He refers to a number of authorities on the meaning of the word "building" in different statutory contexts, including R v Swansea City Council ex p Elitestone Ltd 66 P&CR 422, and Skerrits of Nottingham Ltd v SSETR [2000] JPL 1025. In the latter case, this court was concerned with a large marquee that was erected without planning permission for eight months a year in the grounds of a hotel. The issue was whether the erection of the marquee amounted to development. The inspector held that, having regard to its size, its permanent rather than fleeting character, and the degree of physical attachment to the ground, it was to be regarded as a building for planning purposes. The judge allowed an appeal by the developer. On appeal to this court, the decision of the inspector was reinstated. It was held that the inspector had been entitled to apply the test that he applied.
21. Mr Powell further submits that, even if the scaffold was a building within the meaning of section 336(1), nevertheless the screen was not incorporated in the fabric of the scaffold, so that the first defendant was required to obtain consent for the advertisement.
22. Since I have come to the conclusion that this alternative submission of Mr Powell is correct, I do not find it necessary to decide whether the scaffold was a building within the meaning of section 336(1).
23. Mr Coppell says that the fabric of a building is the stuff of which it is made. Thus if a building is made of stone, the fabric is the stone of which it is made, likewise for bricks and so on. It is the normal attributes comprised in the building. All structures have a fabric. In relation to steel scaffold of the kind in use here, the fabric is the steel skeleton and the external envelope provided by the PVC screen. In my judgment, there are two related elements to the fabric of a building. The first is that it must comprise its essential structure. It does not, for example, include temporary fixtures and fittings. I doubt whether the fabric of an office block includes its internal partition walls, especially if they are demountable. It may take a long time to demount partition walls, and during the course of their removal the building may be unusable: but they are not part of the fabric of the building. The reason is that they are not part of the essential structure or fabric of the building. The second element is that it has a certain degree of permanence. It is a perfectly natural use of language to speak of the fabric of a house or an office block. What is being referred to includes the structural walls, and the roof. These are essential elements of the building which make it what it is, and which have a degree of permanence. Thus it is a natural use of language to speak of causing damage to the fabric of a house or other building, using that term in its ordinary sense. In my view, it is an odd use of language to speak of the fabric of a scaffold. That is a fact based on impression on which it is difficult to elaborate. The reason why it is an unnatural use of language is that a scaffold lacks at least one of the two elements to which I have referred. It may be possible to say that it has an essential structure, namely the very many small pieces of steel which are tied together and the screen. But in my view, it lacks that quality of permanence which is essential to the fabric of a building. The small pieces of steel are readily removable. Moreover, the screen itself is detachable and replaceable. In my view, even if the rest of a scaffold can properly be described as "fabric", it is for that reason not possible to regard the screen as part of that fabric. The method by which it is attached to the rest of the scaffold merely serves to emphasise that it is not incorporated in the fabric of the scaffold.
24. I would, therefore, hold that the advertisement was not incorporated in the fabric of the scaffold. Accordingly, the judge was right to decide that there was an unauthorised display of the advertisement in this case. I would therefore dismiss the appeal in relation to the points on which permission to appeal has been granted.
25. I turn briefly to the other points. Mr Coppell submits that:

(a) the judge had no jurisdiction to grant the mandatory injunction that he granted;

(b) he should not have granted a mandatory injunction since he was wrong to hold (as he did) that the case for granting an injunction was "clear-cut"; and

(c) when considering how to exercise his discretion, the judge failed to carry out a proper balancing exercise in weighing the competing interests of the Council and the defendants.

26. On the first point, the judge relied on section 222 of the Local Government Act 1972 and section 187B of the 1990 Act to found the jurisdiction to grant the injunction. Section 222 provides, so far as material:

"(1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area-

(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name, ..."

27. Section 187B of the 1990 Act, so far as material, is in these terms:

"(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their powers under this Part.

(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."

28. Mr Coppell submits that section 222 enables a local authority in limited circumstances to obtain an injunction to prevent breaches of the criminal law. It does not enable a local authority to secure a mandatory injunction to undo an act which has already been done and which constitutes the alleged offence and for which there is no temporally increasing penalty pending conviction. He points out that the 1990 Act makes no provision for an increasing penalty pending conviction of an offence under section 224 of the 1990 Act.
29. I cannot accept this submission. An offence under section 224 is a single offence, but it is an offence of a continuing nature: see Preston v British Union for the Abolition of Vivisection [1985] JPR 740; and Kingston RBC v National Solus Sites Ltd [1994] JPL 251, 254. In these circumstances, I see no reason why the apparently broad general power given by section 222 should be circumscribed in the manner suggested by Mr Coppell.
30. I would also, if it were necessary to do so, hold that there was jurisdiction to grant an injunction under section 187B of the 1990 Act. In my judgment there was a breach of planning control in this case by virtue of section 55(5) of the 1990 Act. It is true that no planning permission was required to erect the scaffolding simpliciter: see Class A of Part 4 of the 1995 Order. But that did not authorise the display of the advertisement on the scaffolding. In my judgment, the display of that advertisement did involve a change of use and accordingly amounted to a breach of planning control.
31. As for the other points, the judge was entitled to take the view that the point was "clear-cut". But in so far as he based himself on section 187B he did not have to go that far: see Runnymede BC v Harwood [1994] 1 PLR 22. Finally, Mr Coppell has criticised the way in which the judge exercised his discretion. But in my view, he has not demonstrated that this was a plainly wrong exercise of discretion. Once it is established that the advertisement was displayed in breach of planning control and therefore unlawfully, the case for a mandatory injunction was overwhelming. I would refuse permission to appeal on the additional points that Mr Coppell has argued before us.

32. LORD JUSTICE PILL: I agree.

32. The first point at issue is as to the meaning of the word "building" in the context of the law dealing with the display of advertisements. In section 336(1) of the Town and Country Planning Act 1990 ("the 1990 Act") a building is stated to include:

"... any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building."

33. Mr Powell, for the respondent Council, submits that the scaffold (as to which I gratefully adopt the description of Lord Justice Dyson) is "plant" within the meaning of that word in the definition, and so does not come within the definition of building. He submits that if he is wrong about that, the scaffold does not have the quality of permanence required to come within the definition of "building", as being a structure within the meaning of section 336(1). He refers to the importance attached to the quality of permanence in such cases as Cheshire County Council v Woodward [1962] 2 QB 126, R v Swansea City Council ex p Elitestone Ltd (1993) 66 P&CR 422, and Skerrits of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2000] JPL 1025. The present scaffold, he submits, does not meet that requirement.
34. Mr Coppell, for the appellants, refers to the Town and Country Planning (General Permitted Development) Order 1995, which by paragraph 3(1) grants planning permission for the classes of development described as permitted development in Schedule 2. Part 4 of Schedule 2, headed "Temporary buildings and uses" includes, as class A, with the side heading "Permitted development":

"A. The provision on land of buildings, movable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land."

35. It is common ground that by virtue of that provision in the 1995 Order the present scaffold does not require planning permission. The respondents have issued a licence for the erection of a "temporary structure" under the Highways Act. What Mr Coppell relies on, however, in the Part 4 Class A provision, is the acceptance in that paragraph of the concept of a building "required temporarily". He submits that the scaffold also has the other qualities required in the authorities of a building.
36. In Skerrits Morritt LJ stated, at page 1036:

"In the case of planning control, it is apparent from the (General Permitted Development) Order 1995 Schedule 2 Part 4, that a building may be sufficiently permanent for the purpose of planning control and yet be temporary so as to come within the exemption for which that order provides."

37. That of course leaves open the argument that a scaffold may come within the definition in Part 4 Class A, without qualifying as a building under section 336(1) as interpreted in the authorities.
38. I do not find the question whether this scaffold is a building to be an easy one. In view of the clear opinion I have formed on the next requirement, substantially accepting the submissions of Mr Powell for the Council, I do not find it necessary to decide the point. I am prepared to assume, without deciding the points, that for the purpose of deciding the present case the scaffold is a building within the meaning of section 336(1) and that the same meaning should be transferred to the Class D definition.
39. Mr Coppell accepts that to avoid a requirement to come within the need for express consent for the advertisement, he must establish that the advertisement comes within Schedule 2 Class A of the Town and Country Planning (Control of Advertisement) Regulations 1992. If it does, the need for consent is, by virtue of regulation 3(2), absent. Schedule 2 Class D provides, under the heading "Description of advertisement": "An advertisement incorporated in the fabric of a building", and, under the heading "Conditions, limitations and interpretation":

"1. The building or any external face of it is not used principally for the display of advertisements.

2. For the purpose of Class D-

(a) an advertisement fixed to, or painted on, a building is not to be regarded as incorporated in its fabric;

(b) a hoarding or similar structure is to be regarded as a building used principally for the display of advertisements."

40. Mr Coppell persuasively submits that on the basis that the scaffold is a structure and accordingly a building, the advertisement has been "incorporated in the fabric" of the building.
41. The word "fabric" has more than one meaning, and it is the meaning in this context which must be considered. It clearly does not bear the meaning associated with textiles which it may also bear.
42. Mr Coppell equates the word "fabric" with the expression "integral part". The screen (or shroud as the local authority have described it) was necessary for the safety of the work to be conducted. By the use of modern technology the advertisement has been imprinted digitally on the PVC screen and could not be said to be "painted on" in the sense contemplated in the limitation to the Class D definition. It was neither bolted on, nor was it unnecessary to the structure as used for present purposes.
43. The scaffold must have some fabric within the Class D definition, he submits. On analysis the screen was a part of that fabric. It was essential to the scaffold, or at least a normal attribute of a scaffold used for purposes such as the present one.
44. Mr Coppell put it colloquially as being the stuff out of which the structure was made. Mr Coppell makes the further point that there has been no significant complaint about the large advertisement and there is no policy reason why it should not be allowed to remain in position.
45. The judge found:

"The fact that the advertisement is digitally incorporated into the PVC would necessarily mean that it is not `painted on' a building. However the fact that the PVC shroud is fixed with tags and ropes to the scaffold seems to me to be inconsistent with the notion of incorporation into the fabric of a building. If the advertisement in question had been fixed with screws to the brick facade of the First Defendants' building it could not have enjoyed the exempt status in Class D. It would be surprising, and in my judgment wholly unjustified, on any sensible construction of Class D if to tie the advertisement to a scaffold in front of the building achieved a more favourable result for the Defendants as claimed. It is possible to envisage situations where advertisements could be incorporated into the fabric of a building. For example, an advertisement might be incorporated into the brickwork of the elevation of a building. An advertisement might be carved in relief into the fabric of a building, for example over a doorway. These situations it seems to me are very far removed from the circumstances in the present case."

46. I am not able to accept the submission that the advertisement is incorporated in the "fabric" of the scaffold. The word fabric in this sense is typically applied to conventional buildings and not to scaffolds or similar artifices, which may come within the extended meaning of building, if at all, as set out in the interpretation section in the 1990 Act. I see no reason to suppose that any artifact which comes within that definition necessarily has a fabric within the meaning of the paragraph of Class D. That class contemplates an advertisement which is an integral and permanent part of the body of the building. Incorporation into the fabric involves a permanent integration, which this screen does not have. It is tied to the metalwork, albeit in a sophisticated manner, and can readily be removed; though the size of the scaffold may make removal a lengthy operation.
47. I am doubtful whether a conventional scaffold is capable of having a fabric within the meaning of Class D. Even if such a scaffold is capable of having a fabric for present purposes, and even if the advertisement is incorporated into the screen within the meaning of the paragraph, it is not, in my judgment, incorporated into the fabric of the scaffold for the purposes of Class D.
48. Moreover, and while I do not regard this point as necessary to the decision, the advertisement has no part to play in the functioning of the scaffold. Whatever the value of the texture of the screen to the functioning of the scaffold – and there is no dispute about that - its "external face", in the words of the limitation in Class D, is used principally for the display of advertisements as defined in the limitation. The "face" may be distinguished from the structure of the screen.
49. I regard the present issue as one of construction, in which policy issues as to the value or otherwise of the advertisement play no part. The Class D definition must be read as a whole and in context. For the reasons I have given it does not, in my judgment, contemplate an advertisement imprinted on a PVC screen attached to a scaffold.
50. For these reasons, I would dismiss this appeal. As to the application for permission to appeal on other grounds, I agree with the conclusion of my Lord, Lord Justice Dyson, and have nothing to add.
51. Accordingly, on the ground for which permission has been granted, the appeal is dismissed and permission to appeal is refused upon the renewed application on the other grounds.
ORDER: Appeal dismissed with costs assessed summarily on the sum of £3,000; permission to appeal to the House of Lords refused. (Order not part of approved judgment) ____________________