England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(HIS HONOUR JUDGE GILBART QC)
CO/ 6445/2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/12/2007

Sir John Chadwick :

1. This is an appeal from an order made on 8 December 2006 by His Honour Judge Gilbart QC, sitting a Deputy Judge of the High Court in the Administrative Court, in proceedings for judicial review of a decision of the London Borough of Southwark ("the Council") to issue notices pursuant to section 11 of the London Local Authorities Act 1995, requiring removal of advertisement hoardings erected by the appellant, Clear Channel UK Limited, at St George's Circus, London SE1 or its predecessor. The principal issue before the judge was whether those hoardings fell within class 14 of schedule 3 to the Town and Country Planning (Control of Advertisement) Regulations 1992 (SI 1992/666).

The statutory provisions

2. Section 11(1) of the London Local Authorities 1995 Act is in these terms, so far as material:

"11(1) This section applies to a hoarding or other structure used, or designed or adapted for use, for the display of advertisements including . . . a structure which itself is an advertisement, other than such a structure for which deemed or express consent has been granted under the [Town and Country Planning Act 1990] or regulations made thereunder . . . or which was erected before 1st April 1990"

A London borough council in whose area there is a hoarding or structure to which section 11 applied is empowered to serve on any person who appears to the authority to be responsible for the erection or maintenance of that hoarding or structure a notice requiring its removal: sections 11(2) and (3), read with section 2 of the 1995 Act.

3. Section 220(1) of the Town and Country Planning Act 1990 provided for regulations to be made by the Secretary of State for restricting or regulating the display of advertisements. The 1992 Regulations, to which I have referred, were made under that section. For the purposes of the 1990 Act and the 1992 Regulations "advertisement" includes "any hoarding or similar structure used or designed or adapted for use . . . for the display of advertisements . . .": section 336(1) of the 1990 Act as amended by the Planning and Compensation Act 1991.
4. Regulation 5(1) of the 1992 Regulations is in these terms, so far as material:

"5(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') . . ."

Part II of the Regulations makes provision for deemed consent. Regulation 6(1) is in these terms:

"6(1) Subject to regulations 7 and 8 . . . deemed consent is hereby granted for the display of an advertisement falling within any class specified in Part I of Schedule 3, subject –

(a) to any conditions and limitations specified in that Part in relation to that class; and

(b) to the standard conditions."

The "standard conditions" means the conditions specified in schedule 1 to the Regulations. There is nothing in that schedule which is of relevance in the present case. Nor is regulation 7 of relevance. Regulation 8 provides for the service of a notice (a "discontinuance notice") requiring discontinuance of the display of an advertisement or the use of a site for the display of an advertisement for which deemed consent is granted under regulation 6 if the local planning authority are satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality. Unlike a section 11 notice, a notice under regulation 8 may be challenged on appeal to the Secretary of State.

5. The classes specified in Part I of Schedule 3 to the 1992 Regulations include class 14: "Advertisements displayed after expiry of express consent". The class is described in these terms:

"14 An advertisement displayed with express consent, after the expiry of that consent, unless –

(a) a condition to the contrary was imposed on the consent,

(b) a renewal of consent was applied for and refused."

The conditions and limitations specified in relation to class 14 are these:

"14(1) Any condition imposed on the relevant express consent is to continue to apply to any such advertisement.

(2) No advertisement may be displayed under this class except on a site which has been continually used for the purpose since the expiry of the express consent."

In that context "site" takes its meaning from regulation 2(1):

"'site' means any land or building, other than an advertisement, on which an advertisement is displayed."

It is important to keep in mind that, as I have said, in the context of the 1992 Regulations "advertisement" includes a hoarding used or designed for the display of advertisements. A "site" is the parcel of land on which the hoarding is erected. The hoarding is not itself the site: it is an advertisement on the site.

The facts

6. The judge set out the facts at paragraphs [15] to [20] of his judgment, [2006] EWHC 3325 (Admin). As he said, they were not contested. He described the site as "an area of land on a quadrant on the outer circumference of St George's Circus and Borough Road", having a frontage of some 75 metres in length. He noted that there had been an express consent in respect of the site, granted on 23 October 1991. That had followed an earlier consent in 1989, to which the judge did find it necessary to make specific reference. The 1991 consent had permitted "the retention of seven advertisement hoardings to boundary wall: north east quadrant, St George's Circus". He described the effect of the 1991 consent in more detail at paragraph [16] of his judgment.

"[16] It permitted the retention of a display along the back of the pavement, consisting of two panels of 10 feet high by 20 feet wide, raised about four feet off the ground, and five panels, 10 feet high and 40 feet wide, also raised up by about four feet. These advertisements were mounted on a slatted fence, which ran underneath them and between them where gaps occurred. Running from Blackfriars Road round to Borough Road, the layouts of hoardings and gaps were to be: Hoarding 1; gap; hoardings 2 and 3, next to each other; gap; hoardings 4 and 5; gap; hoardings 6 and 7."

The position altered on 15th February 1992. The then owner made alterations to the hoardings. As a result of those alterations there were, thereafter, eight hoardings, raised about five feet in height. It was said that the new hoardings made use of the existing "steels" or structure of the original hoardings.

7. The judge explained that, in 1998, the Council's officers had considered whether the eight hoardings then on site enjoyed deemed consent under class 14. On 16 February 1998 the Council wrote to the then owner in these terms:

" . . . It is recognised that this general area contains signs and hoardings, most of which have Planning Permission, albeit temporary permission. The Council in its attempts to regenerate this area is concerned that these signs and hoardings may be adversely affecting the amenity of this area.

Given the extensive nature of your hoardings in this locality it is considered that there may be a need to modify the existing situation in respect of the expanse of the hoardings and the general amenity of this site.

It is understood that previous Planning Permissions have been obtained in respect of these hoardings for limited periods of time. As the last Planning Permission dated 23 October 1991 bears no condition requesting the removal of the hoardings and associated structures, you are quite correct in that the hoardings have deemed consent. However given the aforementioned regeneration of the area the Council may have grounds to serve a discontinuance notice. The Council does not [wish] to unnecessarily undertake such action and wishes to encourage a suitable solution to this situation. The Council welcomes any possible suggestions you may wish to put forward in respect of retaining some advertisements in this locality but it is unlikely the Council will permit the existing situation to continue."

8. The hoardings were altered further after 1998. The judge described the position at paragraph [20] of his judgment:

"[20] I was shown photographs of the site as it was in 1998 and as it is now. I shall refer to the hoardings as A to H, running from north west, that is Blackfriars Road, round to the east, in other words towards Borough Road. That is the manner in which they were referred to in the case before me. The Council accepts that deemed consent still exists with regard to Hoarding A. Hoarding A is 6 metres long out of a total frontage of, as I have indicated, about 75 metres. In other words it constitutes eight per cent of the total frontage. Hoarding B was permitted as a hoarding of 10 feet by 40 feet. It is now square. It is also in a different position from where it was in 1998. Hoarding C is now over eight feet from the ground. It is in a different position. Hoarding D is no longer 10 feet by 40 feet and is now seven feet from the ground. Hoardings E to G: there were two 10 foot by 40 foot hoardings permitted, there are now three hoardings. They are now 10 feet by 20 feet. Hoarding H is no longer 10 feet by 20 feet but is now square. It is also apparent, when one looks at the photographs, that generally the height has been raised up. I should just add that Mr Fraser-Urquhart concentrated on the fact that the size was not greater but of course a reduction in size of a hoarding alters the appearance of the hoarding because it alters up views around and past the hoarding. It only takes a moment or two with the photographs to see that there has been a very considerable change since 1998 in the appearance of the site and the hoardings. Of particular importance are the facts that the hoardings are higher in absolute terms; that they are raised higher off the ground; that there are now substantial gaps between the hoardings which has a marked effect on their prominence; and, in my judgment, the changes since 1998 and since 1991 were very substantial indeed, so far as hoardings B to H inclusive are concerned."

He held that the hoardings described in that passage were not the advertisements for which consent was given in 1991. There is no appeal from that conclusion.

9. By letters dated 19 and 27 January 2005 the Council informed the appellant – who had become the person responsible for the hoardings – that "by virtue of its size, nature of illumination and poorly considered location in relation to neighbouring buildings" the hoardings had "an over-dominating visual impact that harms the character of the St George's Circus Conservation Area" and that they must be removed. The appellant was warned that failure to remove the hoardings would lead to the issue of enforcement notices under section 11 of the 1995 Act. Following an inconclusive exchange of letters over the next four months, notices in respect of each of the eight hoardings – described as hoardings A to H - were served on 25 May 2005. The Council agreed to take no steps to remove the hoardings pending the outcome of judicial review proceedings.
10. In a letter dated 11 August 2005 the Council accepted that "on the balance of probabilities, the present hoarding A was erected pursuant to the 1989 consent and so was erected prior to 1990". It is necessary to have in mind that section 11 of the 1995 Act was enacted in terms which exclude its application to hoardings erected before 1 April 1990. On the basis that, for that reason, the section could not apply to hoarding A, the Council indicated that it would withdraw the section 11 notice in respect of that hoarding.

These proceedings

11. These proceedings were commenced by the issue of a claim form on 23 August 2005. The relief sought was an order quashing the Council's decision to issue the eight section 11 notices served on 25 May 2005. Given that, as I have said, the Council had indicated that it would withdraw the section 11 notice issued in respect of Hoarding A, it might have been expected that the relief sought would have been limited to the notices served in respect of other seven hoardings: that is to say, Hoardings B to H. But, for whatever reason, relief in respect of Hoarding A was included in the claim.
12. The challenge to that decision was advanced in the claim form on four grounds: (i) that the issue of the notices was ultra vires, in that (it was said) either the hoardings had been erected before 1 April 1990 (so that section 11 of the 1995 Act could have no application) or the advertisements were the subject of deemed consent under regulation 6(1) of, and class 14 in schedule 3 to, the 1992 Regulations; (ii) that, in reaching the decision, the Council erred in law in that it failed to have regard to the fact that the total area of the advertising display was less than that originally permitted by the 1991 consent; (iii) that the Council failed to have regard to the legitimate expectation of the claimant – arising from the representation in the letter of 16 February 1998 that the advertisements were the subject of deemed consent – that any action to require removal would be by way of discontinuance notice (in respect of which the claimant would have the opportunity to appeal to the Secretary of State); (iv) that the decision was perverse.
13. The judge noted (at paragraph [20] of his judgment) that the Council accepted that deemed consent continued to exist in respect of Hoarding A. I have not found it easy to understand why the judge thought that that concession had been made. In paragraph 9 of the grounds of objection annexed to the acknowledgment of service it had been recorded that the Council had withdrawn the section 11 notice issued in respect of that hoarding. That that was the position was confirmed in paragraph 2 of the skeleton argument filed on behalf of the Council in preparation for trial. But paragraph 9 of the grounds of objection went on to assert that: "As it is now contended [at paragraph 37 of the witness statement made on behalf of the claimant by Mr Cliff Pratt on 22 August 2006] that Hoarding A was rebuilt in 1992, it was plainly not erected prior to 1 April 1990. Nor does it enjoy deemed consent under Class 14 as the use of the relevant site does not satisfy condition (2)". Be that as it may, the position before the judge was that the claimant did not need an order quashing the section 11 notice issued in respect of Hoarding A: the notice had been withdrawn.
14. By the time the application came before the judge for trial on 7 December 2006, the second of the four grounds advanced in the claim form had been re-formulated; or, perhaps, had become more focussed. It was said that, even if there had been substantial alteration since 1991 (such that the advertisements which were on the site in 2005 were not, themselves, the subject of deemed consent under the 1992 Regulations), nevertheless the claimant had the right to revert to the original advertisements for which deemed consent continued to exist. The fact that the claimant had that right to revert – in conjunction with a comparison between the effect on amenity of the advertisements which would be permitted under the deemed consent and the effect on amenity of the advertisements which were, in fact, on the site in 2005 – was a material consideration which the Council was required to take into account before reaching the decision to issue the section 11 notices. Failure to take that matter into account led, necessarily, to the conclusion that the decision was flawed.
15. The judge rejected the challenge advanced under each of the first three grounds. He did not find it necessary to address the fourth ground: it may be that he took the view that it added nothing to the second ground.
16. On its face, the order of 8 December 2006 grants permission to appeal to this Court on each of the grounds of challenge. But it is clear from the transcript of proceedings after judgment that that was not the judge's intention: his intention was to limit permission to appeal to the second ground. It is unnecessary to resolve the question whether the appellant could have relied on the apparently unlimited permission granted by the order. Whatever the formal position, the first and third grounds of challenge are not pursued on this appeal.
17. In those circumstances it is unnecessary say more, in relation to the first ground of challenge, than that the judge held, for the reasons which he had given in paragraph [20] of his judgment, that the changes to Hoardings B to H since 1998 and since 1991 had been "very substantial indeed". As he put it (at paragraph [21]): "it follows that these are not the advertisements which were given consent in 1991". He noted (ibid) that the claimant accepted that "if there had been a substantial change, deemed consent rights do not apply". Nor is it necessary to say more, in relation to the third ground of challenge, than that the judge held (at paragraph [36] of his judgment) that the submission that the letter of 16 February 1998 gave rise to a legitimate expectation that any action to remove the advertisements would be by way of discontinuance notice was "fatally undermined" by his findings that there had been substantial changes to all the Hoardings B to H since 1998; so that whatever deemed consent rights there might have been at the date of that letter had not survived.
18. The judge addressed the second ground of challenge at paragraphs [22] to [35] of his judgment. He had identified earlier (at paragraph [12]) that the issue which he needed to decide in order to resolve that challenge was whether, if the claimant was bound to remove the hoardings which were on the site in 2005, it could nevertheless replace them with hoardings which were not substantially different from those for which consent had been granted in 1991. He referred to the claimant's contention that there was such a right as its "fallback" position; and to the right claimed as "the right to revert". If (as he held) there were no right to revert, then the Council had not been required to consider the claimant's fallback position when deciding to issue the section 11 notices in May 2005: the second ground of challenge failed.
19. The reasons which led the judge to conclude that there was no right to revert in this case may, I think, fairly be summarised as follows:

(1) Deemed consent was granted, under regulation 6(1) of the 1992 Regulations for the display of an advertisement falling within (inter alia) class 14 of schedule 3. Class 14 must be read subject to the limitation under paragraph (2) of the Conditions and Limitations. That limitation required that no advertisement might be displayed under that class "except on a site which has been continually used for the purpose since the expiry of the express consent".

(2) In that context "site" meant the parcel of land on which the advertisement was displayed, rather than the advertisement (or the hoarding) itself. What was the extent of the site, in any given case, was a question of fact. Support for that proposition was to be found in two decisions of the Divisional Court: Scotts Restaurants Plc v Westminster City Council (unreported, 4 December 1992, but noted at [1993] JPL B34) and Barking and Dagenham London Borough Council v Mills and Allen Ltd [1997] 3 PLR 1.

(3) The phrase "continually used for the purpose" was to be given the meaning "continually used for the purpose of displaying advertisements in accordance with the express consent which has now expired" As the judge put it (at paragraph [30] of his judgment) limitation (2) to class 14 was to be interpreted so as "to give flexibility so that a site owner who has had consent for, say, five hoardings can take two down and then restore them after some time has elapsed". There was nothing in the decision of Mr Justice Collins in Maiden Outdoor Advertising v London Borough of Lambeth [2003] EWHC 1224 (Admin) which required a different conclusion.

(4) Given the finding of fact which he had already made as to the extent of the site in the present case, it was impossible to contend that, if the display of advertisements on Hoarding A was "lawful" – by which, in the light of the concession which he thought had been made by the Council, the judge may be taken to have meant "the subject of deemed consent" – the whole site had been used continually for the purposes of displaying advertisements within the exception in limitation (2) to class 14.

20. It was for those reasons that the judge concluded that:

"[33] There can be no doubt that the 1991 consent covered the site of all the original hoardings. Equally there can be no doubt that the changes to hoardings B to H have involved substantial departures from the scope of the deemed consent. While those parts of the site have been used for hoardings, they have been used for unauthorised hoardings and the lawful hoarding has occupied one part only of the original site. Given the small part of the site which has been lawfully used, which is eight per cent of the frontage, I have decided as a matter of fact and degree that the deemed consent rights have not remained on the large parts of the site where the claimant erected and maintained unauthorised advertisements."

His reference, there, to the decision being one of "fact and degree" reflected his view (expressed earlier in his judgment at paragraph [13]) that, in the light of observations made by Mr Justice Collins in the Maiden case (ibid, [35], 36]), the correct approach was for him to determine, as a precedent fact, whether deemed consent had continued in respect of the hoardings for which express consent had been granted in 1991.

The issues raised on this appeal

21. As I have said, the appeal is limited to the second ground of challenge: that the Council erred in law in failing to take account of the fact that the claimant had the right to revert before reaching the decision to issue the section 11 notices. The judge's conclusion on that point is itself challenged, in the appellant's notice filed on 23 January 2007, on three grounds: (i) that the judge was wrong to hold that the right to revert could only exist if the site had been used continually for the purpose of displaying some permitted advertisements (or hoardings) since the expiration of the express consent; in the alternative, (ii) that (on the basis that it was common ground that the display of advertisements on Hoarding A was lawful) the judge was wrong to hold that the site had been not used continually for the purpose of displaying permitted advertisements since the expiration of the express consent; and (iii) that the judge was wrong to hold (if he did) that the existence of, and the effect on amenity of, the fallback position was not a material factor which the Council was required to consider when deciding whether to issue notices under section 11.
22. The third of those grounds is, I think, misconceived. On a fair reading of paragraph [35] of his judgment, in the context of the whole, it is clear that the judge did not hold that the existence of the fallback position (if established) would not have been a material factor for the Council to consider. The judge had noted, at paragraph [21], that it was common ground that the existence of the fallback position (if established) would have been a material factor for the Council to consider. The judge held that the Council did not need to take account of the fallback position on the facts in this case; for the reason that, as he had held (at paragraph [33]), the fallback position had not been established. The right to revert did not need to be considered because there was no such right in this case.
23. The Council takes issue with the judge's view (expressed at paragraph [30] of his judgment) that, on a true construction of the exception to limitation (2) to class 14 in schedule 3 to the 1992 Regulations, it would be open to a site owner who has had consent for, say, five hoardings to take "two down and then restore them after some time has elapsed". By a respondent's notice filed on 7 February 2007 the Council seeks to uphold the order of 8 December 2006 for the additional reason that: "Class 14 deemed consent does not cover the re-erection of hoardings (whether following alteration outwith the terms of the express consent or complete removal) after the expiry of an express consent". It is said that such a re-erected hoarding would not be "an advertisement displayed with express consent after the expiry of that consent . . ." within the meaning of class 14. The effect of that contention, as it seems to me, is to deny that there can be a "right to revert" under class 14 in the sense recognised by the judge: that is to say, to deny that a deemed consent under regulation 6 can ever be invoked (in reliance on class 14) in respect of a new hoarding save, perhaps, in a case where the new hoarding replaces (without there having been a substantial interruption or alteration) an existing hoarding which itself enjoyed express or deemed consent.
24. On analysis, therefore, it can be seen that the first issue raised by this appeal is whether, on the true construction of the exception to limitation (2) to class 14, a deemed consent under regulation 6 can be invoked (in reliance on class 14) in respect of a new hoarding in a case where the new hoarding does not replace (without there having been a substantial interruption or alteration) an existing hoarding which itself enjoyed express or deemed consent. If the answer to that issue is "No", then - on the basis of the facts found by the judge which are not themselves the subject of challenge on this appeal - it must follow that no deemed consent under regulation 6 can be invoked (in reliance of class 14) in respect of new hoardings which might replace the existing Hoardings B to H. It is only if that first issue is answered in the affirmative that it will be necessary (on the facts in the present case) to address the further issue: whether (on those facts) a deemed consent can be invoked in respect of new hoardings which might replace the existing Hoardings B to H if those new hoardings did not differ substantially from earlier hoardings which did enjoy express or deemed consent – the "right to revert" on which the appellant relies. .

Can a deemed consent under regulation 6 be invoked (in reliance on class 14) in respect of a new hoarding in a case where the new hoarding does not replace (without there having been a substantial interruption or alteration) an existing hoarding which itself enjoyed express or deemed consent?

25. The appellant accepts (at paragraph 20 of its skeleton argument) that the central feature of this appeal is the extent to which there is a "right to revert" implicit within the provisions for deemed consent under class 14. As it is put in that paragraph: "if advertisements enjoy deemed consent and are then changed in such a way that they move outside the conditions governing the deemed consent, has the deemed consent been lost forever or can advertisements be erected again in accordance with the conditions governing the deemed consent and be again lawful by virtue of that deemed consent". It is said that "the basic existence of a right to revert within the law governing deemed consent" was acknowledged by Mr Justice Collins in Maiden Outdoor Advertising Limited v Lambeth London Borough Council.
26. It is necessary to have in mind the facts in the Maiden case. They may be summarised shortly. The claimant's predecessor had been granted express consent, for a period of three years from 1 May 1956, for the display of advertisements on sites at Coldharbour Lane, London SE5. No conditions (other than the standard conditions) were imposed: in particular, although the application had indicated that the hoardings would not be illuminated, the authority did not (as they could have done) impose a condition restricting illumination. In 1989 the hoardings were altered by the addition of illumination "bars" from which light shone onto the face of the advertisements. Some 13 years later – in pursuance of what the judge described as "something of a campaign against a considerable number of advertisement hoardings in the Borough" – the authority served notices under section 11 of the 1995 Act requiring removal of the hoardings. The claimant sought judicial review, relying on deemed consent under both class 13 and class 14 in schedule 3 to the 1992 Regulations.
27. The claim to deemed consent under class 14 succeeded on the facts. The judge found that the site had been used continually for the display of advertisements on the original hoardings since 1959 (when the express consent came to an end). The only change was the addition of illumination in 1989. So, as the judge observed ([2003] EWHC 1224 (Admin), [34], [68]) the only issue was whether the addition of illumination took the hoardings outside class 14 by reason of limitation (2). As he put it (at paragraph [69]): "The submission made [on behalf of the authority] is that 'for the purpose' [in limitation (2)] means, and must mean, 'for the purpose permitted by the express consent, and the express consent does not extend to illumination". But, as the judge held, the claimant met that submission by pointing out that the definition of "advertisement" in the 1990 Act included the words "illuminated or not"; so that any reference to advertisement in the regulations must be read as including an advertisement which was illuminated as well as an advertisement which was not. That was the meaning which had to be attributed to the 1956 consent. On the basis that the original consent permitted the use of the site for the display of advertisements (whether illuminated or not) there had been continued use of the site for the purpose of displaying advertisements for which express consent had been granted. It is of importance, in the context of the present case, to appreciate that it seems to have been common ground (and accepted by the judge) that the test, in a case under class 14, was whether there had been continual use of the site for the purpose permitted by the express consent. The issue was not whether the class 14 test could be satisfied by use of the site for the purpose of displaying advertisements which were outside the scope of the express consent: the issue (on which the claimant succeeded) was whether the display of illuminated advertisements was within the scope of the express consent.
28. Having reached the conclusion that the claimant in the Maiden case could rely on deemed consent under class 14, Mr Justice Collins (as he recognised) did not need to address the claim to rely on deemed consent under class 13. But he went on to do so; at paragraphs [76] to [93] of his judgment. In the present appeal the appellant relies on passages in those paragraphs It is necessary, therefore, to have the material terms of class 13 ("Sites used for the display of advertisements on 1^st April 1974") in mind:

"Description.

13 An advertisement displayed on a site which was used for the display of advertisements without express consent on 1st April 1974 and has been so used continually since that date.

Conditions and Limitations

13(1) No substantial increase in the extent, or substantial alteration in the manner, of the use of the site for the display of advertisements on 1st April 1974 is permitted

(2) . . ."

29. Mr Justice Collins directed himself (ibid, [80]) that, on the legislation as it stood, it was impossible to hold that, as a general proposition, provision of illumination did or did not amount to a substantial alteration in the manner of use of the site. It was necessary to consider the question of substantial alteration in relation to each particular site. The answer would depend on the effect of the illumination in the particular case. He held, (ibid, [86]) that the authority had not carried out that exercise in the case before him. He was unable, himself, to decide (on the material) whether or not it would be correct to conclude as a matter of fact that there was or was not a substantial alteration. But he could say that the authority had been wrong to approach the question on the basis that they had adopted: that, as a general proposition, any illumination was a substantial alteration. The decision should be quashed for that reason.
30. He then went on to say this:

"[87] A further point was raised in the course of argument. Assuming that the illumination did create a substantial alteration, was it possible for the claimants to remove the illumination and so continue under Class 13 the use of the site with the deemed consent, or did the deemed consent lapse once the illumination was installed? "

It is in that context that Mr Justice Collins made the observations on which the appellant relies in the present case to found the submission that "the basic existence of a right to revert within the law governing deemed consent" was acknowledged in the Maiden case.

31. Mr Justice Collins began his consideration of the question which he had posed in the passage which I have just set out by noting (ibid, [88]) that section 11 of the 1995 Act was "all or nothing": there was "no power to require the removal of an offending extra". So, if the authority were correct, "once something is done, which in fact creates a breach of the condition in 13(1), the deemed consent disappears and it is not possible to repair the situation". That, he held, would be a draconian provision. He pointed out that the question was whether, on the true construction of class 13 as a whole, "the change, if it be a substantial alteration, means that the deemed consent comes to an end". He set out the submissions advanced on behalf of the claimant:

"[91] Mr Holgate submits that what is being done in order to achieve [the construction for which the authority was contending] is to write the condition into the description. One must look at the description first and that simply refers to an advertisement displayed on site which was used for the display of advertisements without express consent on 1st April 1974 and has been so used continually since that date.

[92] The fact is that the site is one which has been continually used for the display of an advertisement since April 1st 1974. The breach of the condition may enable action to be taken, but if the condition ceases to be breached, there is no reason why the deemed consent should not continue to run. That, he submits, is to provide a fair construction of Class 13 because it means that an offending party can put the position back by removing what offended. "

He went on to say this:

"[93] One must bear in mind that a person responsible for an advertisement hoarding may well reasonably believe that he is not going outside his deemed consent by, for example, introducing a form of illumination. . . . I have no reason to believe that the claimants have acted otherwise than reasonably. Indeed as, we know, no one has suggested that there were doing anything wrong for some 13 years before Lambeth suddenly wrote to them telling them that they were. In those circumstances, I have no hesitation in accepting the construction that Mr Holgate places upon this. That being so, it seems to me that, when considering whether they should exercise their discretion to take action under section 11, the authority should first require the removal of the offending matter -- in this case, the illumination -- and certainly should have regard in any event, in considering whether to use section 11, to the fact that it would be possible to remove the illumination, or whatever the offending matter was, and thus revive the deemed consent. I say that because, as I have indicated, section 11 is an all or nothing and will mean the removal in its entirety of the advertisement hoarding." [emphasis added].

32. It is clear that, in reaching that conclusion, Mr Justice Collins adopted the reasoning advanced by counsel for the claimant. It was first necessary to ask whether the advertisement (or hoarding) fell within the description in class 13: "An advertisement displayed on a site which was used for the display of advertisements without express consent on 1st April 1974 and has been so used continually since that date". There was no doubt, on the facts in the Maiden case, that the site had been used for the display of advertisements (on hoardings) without express consent since 1 April 1974. Prima facie, therefore, any hoarding erected on the site would fall within class 13. But "deemed consent" for the display of advertisements (or hoardings) which fell within class 13 was given subject to "any conditions and limitations specified . . . in relation to that class": regulation 6(1)(a) of the 1992 regulations. So there could be no deemed consent under regulation 6 in a case where, at the time when the question fell to be considered, the use of the site for the display of advertisements (or hoardings) was substantially different in extent (if greater) or manner from the use on 1 April 1974: limitation (1) to class 13. If, however, the question whether there was deemed consent for a hoarding fell to be considered in the future – at a time when (following the removal of the offending hoardings and their replacement by others) the use of the site for the display of hoardings was no longer substantially different from the use on 1 April 1974 – there would be no reason why the deemed consent given, prima facie, by regulation 6 should be denied by the operation of limitation (1): that limitation would have no application in the changed circumstances.
33. If I may say so, I think that Mr Justice Collins was right, in the Maiden case, to accept and adopt that reasoning in relation to the construction and effect of class 13 in schedule 3 to the 1992 Regulations. But I do not think it apt to describe the removal of offending hoardings and their replacement by others as having the effect that the deemed consent was "revived"; or as giving rise to a "right to revert". The true analysis is that the question whether the display of an advertisement (or hoarding) on a site is authorised by deemed consent under regulation 6(1) has to be answered by reference to the facts as they are at the time. At paragraph 25 of its skeleton argument, filed for the purpose of this appeal, the appellant asserts that "The issue of deemed consent is to be taken as a 'snapshot'; it gives legality to a particular display at a particular time". In my view that is a correct statement of the position. But that, as it seems to me, provides no support for the submission that "a right to revert within the law governing deemed consent" must be acknowledged to have some "basic existence".
34. Mr Justice Collins was right, also, to treat the question which he had posed at paragraph [87] of his judgment in the Maiden case as a question of construction. In that context, the question was as to the true construction of class 13 in schedule 3 to the 1992 Regulations. In the present case, the question is as to the true construction of class 14. Adopting the approach which, as I have explained, was taken (correctly) in the Maiden case, it is first necessary to ask whether the advertisement (or hoarding) falls within the description in class 14. As I have said, it is now common ground that Hoardings B to H do not enjoy deemed consent. The reason is that those hoardings do not fall within the description in class 14: they are not "advertisements displayed with express consent, after the expiry of that consent". The first question to be asked, in the present context, is whether, if Hoardings B to H were removed and replaced by other hoardings, those new hoardings could fall within the description in class 14.
35. In addressing that question it is necessary to have in mind that hoardings which do not otherwise fall within the description in class 14 are not brought within that description by the conditions and limitations to class 14. That is made clear by the language of regulation 6(1): deemed consent is granted for the display of an advertisement falling within the class (as specified or described), subject to the conditions and limitations specified in relation to that class. The intended effect of the conditions and limitations is to exclude from the scope of the deemed consent advertisements which would otherwise fall within the class as described; not to bring within the scope of the deemed consent advertisements which would not otherwise fall within the class as described. The fact (if it were established) that the site on which a hoarding was erected had been "continually used for the purpose" (whatever meaning is to be given to that expression) since the expiry of the express consent would not lead to the conclusion that the hoarding enjoyed deemed consent if it did not otherwise fall within the description in class 14.
36. It must also be kept in mind that the description itself contains two requirements and two qualifications. The requirements are (i) that the advertisement is an advertisement "displayed with express consent" and (ii) that it is an advertisement "displayed . . . after the expiry of that consent". The qualifications are (a) that no "condition to the contrary" was imposed on the consent and (b) that no renewal of consent was applied for and refused. It is necessary, therefore to refer, in rather more detail than hitherto, to the terms of the express consent (or consents) relevant in this case.
37. Consent under the Town and Country Planning Act 1971 and the Town and Country Planning (Control of Advertisements) Regulations 1984 was granted by the Council on 5 June 1989 (under reference TP/ADV-1390-B-AJF) in these terms:

"CONSENT to the advertisement at Site at ST GEORGES' CIRCUS (Between BLACKFRIARS ROAD [and] BOROUGH ROAD SE1) described as follows:- Two advertisement [hoardings] measuring 10' x 20' and five advertisement hoardings measuring 10' x 40'

Feather edge fencing: - 4' below each panel + 70' x 6' in fill static externally floodlit.

In accordance with the application received 12/4/89 and plans registrar No 515/89 applicants' plans Nos, Un-numbered"

That consent was granted for a period of two years and subject to the following condition (amongst others):

"1. The advertisement(s) or sign(s) hereby granted consent shall be displayed for a period of not more than 2 years from the date of this consent at the end of which period the advertisement(s) or sign(s) shall be removed together with any fixing points or supporting structure and the building or land made good."

The period of that consent expired on 5 June 1991. The hoardings were not removed. A further application for consent was made on 17 August 1991. Consent was sought for "Advertisement Hoardings as per previous application and approval - Your ref: TP/ADV -1390- B – AJF: Advertising Panels measuring 10' x 20' (x 2, panels 1 & 7) 10' x 40' (x 5, panels 2, 3, 4, 5, 6)". On the basis of that application consent was given on 23 October 1991 under the 1990 Act and the Town and Country Planning (Control of Advertisements) Regulations 1989 (SI 1989/670). The 1991 consent was for "The retention of seven advertisement hoardings to boundary wall NORTH EAST QUADFRANT, ST GEORGE'S CIRCUS" for a period of two years. That reflected the provision – now contained in regulation 13(2)(c) of the 1992 Regulations - that an express consent may be for the retention of any display of advertisements. Unlike the 1989 consent, the 1991 consent did not include an express condition as to removal at the end of the two year period. There was no standard condition to that effect in the 1989 Regulations (or, so far as material, in the 1992 Regulations)

38. The appellant does not, I think, suggest that the 1989 consent is a relevant "express consent" for the purposes of class 14 in schedule 3 to the 1992 Regulations. It is right not to do so. The 1989 consent plainly does contain a "condition to the contrary" within qualification (a) to the class 14 description: it contains an express condition requiring the removal of the hoardings at the end of the period for which express consent was granted. The 1989 consent can provide no basis for a deemed consent for future hoardings on the site. The appellant must seek to rely on the 1991 consent as the relevant "express consent" for the purposes of class 14.
39. In construing the descriptive words in class 14 of schedule 3 to the 1992 Regulations it is necessary to have in mind that an express consent might be granted (a) for the display of a particular advertisement, as the applicant might specify, (b) for the use of a particular site for the display of advertisements in a specified manner (whether by reference to the number, siting, size or illumination of the advertisements, or the structures intended for such display, or the design or appearance of any such structure, or otherwise) or (c) for the retention of any display of advertisements or the continuation of the use of a site begun before the date of the application: regulation 13(2) of the 1992 Regulations. I am prepared to accept (without deciding) that, in a case where express consent is granted under regulation 13(2)(b) – or a legislative predecessor – the expression "an advertisement displayed with express consent" is apt to describe a new hoarding, erected after the express consent has expired, which replaces an earlier hoarding erected pursuant to that express consent; provided, of course that the new hoarding complies with the terms of the express consent as to use of the site. Indeed, I would accept that that expression is apt to describe a new hoarding which replaces an earlier hoarding which was itself erected after the express consent had expired; subject to the same condition being satisfied both in respect of the new hoarding and the hoarding which it replaces. But that is not this case. I would be content to accept (again without deciding) that, in a case where express consent is granted under the second limb of regulation 13(2)(c) – "the continuation of a use of a site begun before the date of the application" – the expression may be apt to describe a new hoarding, erected after the express consent has expired, provided that it can be said that the use of the site has continued unaltered. But, again, that is not this case. The question in this case is whether, where express consent is granted under the first limb of regulation 13(2)(c), a new hoarding, erected after the express consent has expired, can be said to be "an advertisement displayed with express consent".
40. In my view the answer to that question is "No". Where express consent has been granted for the retention of a display of advertisements (or hoardings) – which, ex hypothesi, are on the site at the time of the grant - it seems to me impossible to hold that a new hoarding satisfies the first requirement in the description of class 14. That is because it is impossible to hold that the hoarding is an advertisement displayed with express consent. It is immaterial, in such a case, that the hoarding may be similar (or even identical) in size, design or appearance to the hoarding which was on the site at the time of the grant: the new hoarding is not a hoarding of which it can be said that there has been a retention: it is not the subject of the express consent in the terms in which that consent was granted.
41. To my mind that conclusion is determinative of this appeal. It is unnecessary to go on to consider further whether there are other circumstances in which a deemed consent under regulation 6 can be invoked (in reliance on class 14) in respect of a new hoarding in a case where the new hoarding does not replace (without there having been a substantial interruption or alteration) an existing hoarding which itself enjoyed express or deemed consent. As I have said, I am content to accept that there are. Those circumstances could arise, as it seems to me, in a case where express consent was granted under regulation 13(2)(b) – or under the second limb of regulation 13(2)(c) - of the 1992 regulations.
42. In such circumstances, it would be necessary to address the further issue whether, for the purposes of limitation (2) to class 14, the site had been continually used for the purpose since the expiry of the express consent. But that is not this case. It is, I think, sufficient that I indicate my view that, in a case where express consent was granted under regulation 13(2)(b) – or under the second limb of regulation 13(2)(c) – it would not be difficult to envisage circumstances where the site had been used continually for the purpose for which express consent had been granted, notwithstanding that the hoardings on the site had changed from time to time. But I should emphasise that that is not to say that in such a case, limitation (2) to class 14 would not have the effect of excluding deemed consent if there had been use, in the interim, which was outside the scope of the express consent. I do not accept that, in such a case, there would be a right to revert. The reason, as it seems to me, is that limitation (2) to class 14 – unlike limitation (1) to class 13 – requires consideration of the position throughout the period since the expiry of the express consent. In addressing the question whether deemed consent is excluded by limitation (2) to class 14 it is not sufficient simply to ask whether, at the time when the decision falls to be made, the site is being used for the purpose for which express consent was granted. There is no right to revert.

Conclusion

43. For those reasons, which differ in some respects from the reasons on which the judge relied, I would dismiss this appeal.

Lord Justice Moore-Bick

44. I agree.

Lord Justice Waller :

45. I also agree.