England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr. Justice Irwin
[2009] EWHC 465 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 October 2009

Lord Justice Moore-Bick :

1. This appeal concerns an illuminated digital display advertisement hoarding on the flank wall of a building at the corner of Fulham Palace Road and Winslow Road in South West London. The building itself, which occupies Nos 112-114 Fulham Palace Road, fronts on to that road. The junction between Fulham Palace Road and Winslow Road forms part of a cross roads controlled by traffic lights. The hoarding is attached to the side of the building facing Winslow Road but is angled slightly in the direction of Fulham Palace Road. It is clearly visible from Winslow Road and also to pedestrians and traffic travelling in a North Westerly direction along Fulham Palace Road.
2. There has been an advertisement hoarding on this site for many years. For some time prior to 1991 it consisted of a traditional billboard approximately 18m² in area of the kind used for paper displays which was sited at or just above ground level. At some time in 1991 a second hoarding, also with an area of approximately 18m², was installed above the billboard. That was illuminated and consisted of what is known as a "Trionic" display, that is, a mechanical device consisting of a series of three rotating panels, internally lit, which enable three separate images to be displayed in order, the display changing at pre-determined intervals, usually of a few seconds. In September 1998 the Trionic display was replaced with an "Ultravision" display, another mechanical device, also internally lit, containing a scrolling device similar to a roller blind which also enables a series of images to be displayed in order at pre-determined intervals, again usually of a few seconds. In 2002 both hoardings were replaced with what is known as a "Golden Square", a static display in the nature of a traditional billboard, externally lit and approximately 36m² in size. Finally, in April 2008 the Golden Square was replaced with a digital hoarding of approximately 18m² occupying the upper part of the area previously occupied by the Golden Square, the space beneath it being left free. The digital hoarding, which employs LED technology, allows several images to be displayed at pre-determined intervals and represents the latest development in equipment used for displaying advertisements. When the digital display was erected it was angled slightly in the direction of Fulham Palace Road to render it more visible from that direction.
3. Since 6^th April 2007 the display of advertisements has been controlled by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 made under the Town and Country Planning Act 1990. They provide, so far as is material for present purposes, as follows:

"6.— Deemed consent for the display of advertisements

(1) Subject to regulations 7 and 8 . . . consent is granted for the display of an advertisement of any class specified in Part 1 of Schedule 3, subject to—

(a) the standard conditions; and

(b) in the case of any class other than Class 12, the conditions and limitations specified in that Part in relation to that class.

. . .

SCHEDULE 3

Class 13 Advertisements on sites used for preceding ten years for display of advertisements without express consent.

Description

13. An advertisement displayed on a site that has been used continually for the preceding ten years for the display of advertisements without express consent.

Conditions and Limitations

13(1) An advertisement does not fall within this description if, during the relevant 10-year period, there has been either a material increase in the extent to which the site has been used for the display of advertisements or a material alteration in the manner in which it has been so used.

13(4) An advertisement that—

(a) comprises sequential displays; or

(b) otherwise includes moving parts or features; or

(c) features intermittent lighting in a manner designed to give the appearance of movement,

is not permitted unless—

(i) it is displayed on 6^th April 2007 and falls within the description specified in any of sub-paragraphs (a) to (c); or

(ii) it is first displayed after that date, and the advertisement most recently displayed fell within any such description."

4. On 3^rd April 2008 the respondent council as the local planning authority wrote to the appellant noting that the digital display had been erected adjacent to the flank wall of Nos 112-114 Fulham Palace Road and requiring its removal on the grounds that it had not received express consent and did not benefit from deemed consent under the Regulations because it was materially different from the hoarding that that had previously been displayed on that site. The appellant declined to comply with the council's demand on the grounds that the hoarding was no larger than the illuminated hoarding it replaced and that the site had the benefit of deemed consent under the Regulations. On 23^rd May 2008 the council served on the respondent a notice under section 11 of the London Local Authorities Act 1995 ("the 1995 Act") requiring the appellant to remove the hoarding within 21 days. The parties were unable to resolve their differences in correspondence and accordingly on 12^th June 2008 the appellant started proceedings for judicial review seeking to have the council's decision quashed.
5. The grounds on which the appellant sought judicial review were that the hoarding enjoyed deemed consent because the site had been used continuously for advertising since 1991 and there had been no material increase in the extent or alteration in the manner in which it had been used. There was, it contended, no material distinction between changing displays manually (as in the case of traditional billboards), mechanically (as in the case of Trionic or Ultravision displays) or digitally. Moreover, the appellant contended that in deciding to serve a notice under section 11 of the 1995 Act the council had failed to have regard to two material considerations, namely, that the site had been used for advertising for a long time and that, if given a reasonable opportunity to do so, the appellant could revert to a former use of the site for which there would be deemed consent and would thus not be deprived of its use altogether (the so-called "right to revert").This latter argument was based on the decision of Collins J. as to the effect of the previous regulations in R (Maiden Outdoor Advertising Ltd) v London Borough of Lambeth [2003] EWHC 1224 (Admin) as explained by this court in Clear Channel v London Borough of Southwark [2007] EWCA Civ 1328.
6. The appellant's claim for judicial review was heard by Irwin J. He found that the replacement in April 2008 of the Golden Square by a digital hoarding represented a material alteration in the manner of use of the site; he also held that the digital hoarding was an advertisement that comprised a sequential display. As to the exercise by the council of its discretion, the judge held that, whatever may have been the position under the previous regulations, under the 2007 Regulations once deemed consent had been lost as a result of a material alteration in the manner in which the site was used, it could not be recovered by reverting to a former use and that therefore the council had not failed to take that possibility into account. He therefore dismissed the claim and it is against his decision that the present appeal is brought.
7. Mr. Fraser-Urquhart for the appellant accepted that it was for the judge to decide as a matter of fact whether there had been a material alteration in the manner in which the site had been used within the ten years immediately preceding the date of the notice, but he submitted that the judge had not in fact asked himself the correct question and that in any event the evidence before him was insufficient to support his finding that there had been any such material alteration. He also submitted that the judge was wrong to hold that the hoarding was an advertisement that comprised sequential displays and wrong again to hold that there was no "right to revert". Finally, he submitted that the council had failed to take into account a number of relevant factors when deciding whether to serve a notice under section 11 of the 1995 Act requiring the removal of the hoarding, among which was its power to proceed by way of a prosecution.
8. Four issues arise for determination on this appeal:

(i) whether the judge's approach to the issue of material alteration was correct and whether there was sufficient evidence to support his finding;

(ii) whether the digital hoarding was an advertisement that comprised sequential displays;

(iii) whether under the 2007 Regulations there exists a "right to revert"; and

(iv) whether the council's decision to serve a notice under section 11 of the 1995 Act was unlawful because it failed to take relevant matters into account.

(i) Material alteration

9. It was common ground that whether there had been a material alteration in the use of the site was to be judged by reference to considerations of amenity and public safety, those being the criteria by reference to which the council's powers under the Regulations are to be exercised: Regulation 3(1). It was also common ground that whether there had been any such alteration was a matter of fact for the judge to decide.
10. The judge was provided with, among other things, colour photocopies of the previous Golden Square display together with six brief video recordings of the digital display, four made during the day and two after dark. He found in paragraph 20 of his judgment that the alteration of the structure was material in that it was capable of affecting amenity in the area. He said:

"20. I do find that the alteration of this structure is material so that it is capable of affecting amenity in the area. I do so on two mutually consistent and supportive bases. Firstly, the size, bulk and position, and the "nature of the object", if I can use that term, make this structure markedly more obtrusive in the area, reasonably capable of representing a material change in the amenity value to the immediate vicinity. Secondly, the nature of the illumination and display itself — the changing light — sometimes meaning that an 18-square-metre screen is extremely bright, casting light on to other buildings, and sometimes suddenly dark, or partly dark, represents a strikingly new illumination. This is capable of affecting amenity in the way that a fixed light from a shopfront, or the fixed light on to the previous hoarding, it seems to me, does not. The position of the illuminated screen is deliberately very high and it casts light high up on to the surrounding area, where residential property may be likely to be in question."

11. In the following paragraph he said this:

"21. In relation to both of these conclusions as to the materiality of the alteration, I have considered the question by testing it in this way: if permission for express consent was applied for, it seems to me clear that perfectly rational people could lodge objections to the effect on amenity of this structure. We are not in the position of an application for express consent and I am not intending to pre-judge any such application, if that is what ever transpires. But it seems to me that it is plain that a rational person with an interest in the amenity of the area could say this affects amenity to a considerable degree."

12. Mr. Fraser-Urquhart submitted that paragraph 21 betrays the true reasoning that lies behind the judge's finding in paragraph 20 and shows that, instead of deciding whether as a matter of fact there had been a material alteration in the manner in which the site had been used, he had considered whether a reasonable person could think that the amenity of the area had been affected. I am unable to accept that. I think it is clear that the judge asked himself the right question and answered it in paragraph 20, giving his reasons for finding as a fact that there had been a material alteration in the manner of use. All he did in paragraph 21 was to test his conclusion by reference to the response of a rational observer. If he had concluded that no rational observer could sensibly think that the alteration affected the amenity of the area, that would no doubt have caused him to reconsider his finding. As it was, it tended to confirm him in the conclusion he had already reached. In my view this criticism of the judge's decision is without foundation.
13. Mr. Fraser-Urquhart's next submission was that the quality of the video recordings and the circumstances under which they had been made did not provide a fair impression of what is observed by the naked eye and did not therefore provide a satisfactory basis for finding that there had been a material alteration in the manner of use of the site. I have had the benefit of viewing the video recordings themselves as well as seeing the colour photocopies of the Golden Square that were before the judge. Colour photocopies are less informative than photographic prints because they do not have the same sharpness of focus or depth of colour, but for many purposes they are an adequate substitute. A video recording made by an amateur is likely to be less valuable in some respects than one made by a professional, but again may provide evidence that is sufficiently reliable for the particular purposes for which it is produced. It is true, as Mr. Fraser-Urquhart pointed out, that in this case the judge had no scientific evidence to assist him, such as measurements of the degree and intensity of illumination, but where amenity and public safety are concerned the impact on the viewer is likely to be more important than bald measurements of that kind. The question is not whether the judge had available to him all the evidence that might conceivably have been provided, but whether the evidence that he did have was sufficient to support the finding he made. In my view it was and the reasons he gave for his decision demonstrate that he had in mind factors of a kind that the evidence enabled him to assess satisfactorily.
14. Finally Mr. Fraser-Urquhart submitted that in reaching his decision on this issue the judge failed to take into account the fact that the council apparently did not regard any of the previous alterations in the use of the site as material. In my view, however, this is a false point. It was for the judge to decide whether the change from a Golden Square to the digital display was material. That was a matter of fact on which he had to make his own finding. What the council thought about the materiality of the change was not relevant; nor was it relevant what it had thought about any of the previous changes.
15. For these reasons I consider that the judge's finding that there had been a material alteration in the manner of use of the site is unassailable.

(ii) Sequential displays

16. The appellant's case was that since the images displayed on the hoarding are unrelated to each other and each is entirely static (there being no animation or movement of any kind in the image), there is no "advertisement that comprises sequential displays" within the meaning of Condition 13(4). The judge held that there was a sequential display because the advertisements followed each other in the same order for the same length of time, although he also expressed the view that even if they had been displayed at random they would have constituted a sequential display on the assumption that they would be displayed one after the other, each for the same total period of time.
17. In my view the answer to this question depends to a large extent on the meaning of the word "advertisement". "Advertisement" is defined in section 336(1) of the Town and Country Planning Act 1990 as follows:

"any word, letter, model, sign, placard, board, notice, awning, blind , device or representation, in the nature of, and employed wholly or partly for the purposes of, advertisement . . . and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used . . . for the display of advertisements . . ."

It is thus capable of meaning both the image itself and the structure on which it is displayed. This is potentially of some importance since none of the individual advertisements contains any sequential display, in the sense of changes to its appearance, although the structure on which they are displayed does.

18. Mr. Fraser-Urquhart submitted that the meaning of the word depends in each case on its context: sometimes it means the image and sometimes the structure. I quite accept that the context in which the word is found is important and may make it clear that only some of its many meanings is intended. However, I think Mr. Green was right in submitting that the definition is worded in a way that suggests that it was intended to encompass both the image and the structure, unless the context makes it clear that one or other was not intended. In the present case sub-paragraph (b), which refers among other things to "moving parts", suggests that it was intended to apply to structures, since images do not have moving parts, although they may have moving features and sequential displays. Mr. Fraser-Urquhart submitted that it follows from the use of the word "otherwise" in paragraph (b) that in order to fall within paragraph (a) an advertisement must in some other way include moving parts or features and so must exclude static images such as those displayed by the digital hoarding in this case. That might be a possible interpretation of Condition (4) if the word "advertisement" meant simply the image displayed, but the difficulty I have with the submission is that, in view of the way in which the condition is structured, the word cannot sensibly have been intended to bear a different range of meanings in relation to different paragraphs. In my view it was intended in this context to encompass both the image itself and the structure on which it is displayed. Accordingly, an animated display falls within paragraph (a), as does a structure which displays sequential images; and such a structure also falls within paragraph (b), if it has moving parts or features. Although I would agree that the expression "comprises sequential displays" is slightly awkward to described the action of a hoarding which displays sequential images, I do not consider it to be so inapposite as to indicate that paragraph (a) was not intended to bear the meaning I have indicated.
19. Are the displays in this case sequential? Mr. Fraser-Urquhart submitted that they are not because a series of images cannot properly be described as sequential unless they are displayed in a rational order, so that each is in some way related to that which has gone before and that which comes after. In this case, it is said, there is no rational connection of any kind between the advertisements other than the fact that they are displayed for a pre-determined period in a pre-determined and unvarying order.
20. Once again, I think the context in which the expression is used is important. Sometimes the words "sequence" and "sequential" are used to denote a series of events arranged in a rational order, in which each constituent is related in some way to that which has gone before and that which comes after, but in my view they can equally well be used in respect of a series of events which from some exterior perspective are, or may be considered to be, linked in some way. I agree with the judge that if the equipment had been set to display the images in a random order, and even for random periods of time, they could as a whole properly be described as a sequential display merely because from the perspective of the viewer one follows another. I think that in the context of paragraph (4), which covers advertisements with moving parts or features and intermittent lighting designed to give the appearance of movement, paragraph (a) is intended to apply where there is a change of image and that the expression "sequential displays" is apt to refer to any display in which one image follows another. In my view, therefore, the judge was right to hold that the case fell within paragraph 4(a).

(iii) The "right to revert"

21. In order to understand this issue it is necessary to set out the relevant parts of the Town and Country Planning (Control of Advertisement) Regulations 1992 ("the 1992 Regulations"), the predecessors of the 2007 Regulations. Regulation 6 of the 1992 Regulations was in substantially the same terms as Regulation 6 of the 2007 Regulations, but Class 13 and its Conditions and Limitations were somewhat different. They provided as follows:

"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;"

22. In R (Maiden Outdoor Advertising Ltd) v London Borough of Lambeth Collins J. held that in cases where consent was deemed to have been given to the use of a site for the display of advertisements but such consent had been lost as the result of a material alteration in the manner of use of the site, the advertiser could revert to the previous lawful use and thereby recover the deemed consent, hence the description "right to revert". In those circumstances he held that it was unlawful for the council to serve a notice under section 11 of the 1995 Act without considering whether to give the advertiser an opportunity to revert to its previous use.
23. In Clear Channel v London Borough of Southwark this court, of which I was a member, agreed in substance with the view expressed by Collins J. as to the effect of the 1992 Regulations, although it favoured a rather different analysis. Sir John Chadwick, with whom the other members of the court agreed, said:

"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."

24. Mr. Fraser-Urquhart submitted that there was no reason to think that when making the 2007 Regulations the Minister had intended to alter the previous position and that the effect of doing so was so serious for advertisers that they should be construed in the same way as the 1992 Regulations unless it was impossible to do so.
25. Two features of Class 13 and Condition 13(1) of the 1992 Regulations enabled the court to hold that they should be construed as requiring the question whether there was deemed consent to the display of an advertisement on a particular site to be answered by reference to the facts as they were at the time the question fell to be answered (the so-called "snapshot" approach). The first was that the description of the class referred only to continuity of use of the site for advertising; the second was the use in Condition 13(1) of the expression "No substantial increase . . . is permitted", which directed attention to the current use and required one to determine whether it was permitted or not. The language of Condition 13(1) of the 2007 Regulations is quite different. It directs attention to changes in the extent to which the site has been used and to alterations in the manner in which it has been used during the preceding ten years. If there has been any such change or alteration and if it was material, the advertisement currently on the site falls outside Class 13 altogether and does not enjoy deemed consent. I can see no basis on which it could be argued that the position under the 2007 Regulations equates to that under the 1992 Regulations, nor do I see how it can plausibly be argued that a further change can effectively restore the former position. The choice of language is itself, in my view, sufficient evidence, if evidence were needed, of an intention to depart from the previous position. I am quite satisfied, therefore, that there is no right to revert under the 2007 Regulations of the kind that was held to exist under the 1992 Regulations. The judge rejected this argument on these grounds and in my view he was right to do so.

(iv) Discretion

26. The conclusion I have reached on the existence of a right to revert largely undermines the appellant's challenge to the exercise by the council of its decision to issue a notice under section 11 of the 1995 Act. Mr. Fraser-Urquhart submitted that its decision was flawed because in exercising its discretion to take that course it had failed to take into account a number of relevant matters. Apart from the right to revert, these were said to be (a) the fact that the site had been used for advertising for many years; (b) the fact that that the council had not objected to previous changes in the use of the site as being material; and (c) the fact that when the digital display was erected it was not apparent that, if it amounted to a material alteration in use, it could not be removed and the previous deemed consent revived.
27. In my view there is no substance in any of these complaints. In the light of the 2007 Regulations there were only two courses open to the council if there had been a material alteration in the manner of use of the site: to tolerate an unlawful use of the site or to obtain the removal of the advertisement. It could not serve a notice of discontinuance under Regulation 8, since that applies only to advertisements for which there is deemed consent. In my view none of the three matters to which the appellant referred was relevant to the council's decision. It is inherent in Class 13 that the site may have been in use for advertising for many years; it is difficult to see how that could properly influence the council in favour of tolerating a use that had recently become unlawful. The fact that it had not objected to previous changes of use is likewise irrelevant; it was not suggested that by reason of their nature or the circumstances in which they occurred the council's failure to act had created a legitimate expectation on the part of the appellant that the erection of a digital display would be not be regarded as material. The replacement of the 1992 Regulations by the 2007 Regulations was a matter of public record and was known to the appellant who was able to obtain legal advice about their effect.
28. Finally Mr. Fraser-Urquhart sought to contend that the council should have given consideration to pursuing the matter by way of prosecution rather than by the issue of a notice under section 11 of the 1995 Act. I am not sure that I understand why it is said that course should have considered, since the display would have remained unlawful and the only purpose of bringing a prosecution would have been to have it removed. I am not at present persuaded, insofar as this was suggested, that the opportunity of challenging a prosecution as being an abuse of process (as was held possible, albeit in rather different circumstances, in Postermobile Plc v London Borough of Brent (D.C.) (unreported, 11^th November 1997) would have been more favourable to the appellant than the opportunity of challenging the council's decision by way of a claim for judicial review, but even if it were, I doubt whether that would be a factor that the council ought to have taken into account when deciding what course to take. It is unnecessary to decide either of those questions, however, because this particular complaint did not form any part of the grounds on which the appellant sought judicial review and it was not addressed by the council in evidence or argument or by the judge in his judgment. It is far too late for it to be raised now.
29. For all these reasons I am satisfied that in exercising its discretion to serve a notice under section 11 of the 1995 Act the council did not act unlawfully.
30. I would therefore dismiss the appeal.

Lord Justice Wall:

31. I agree that this appeal should be dismissed for the reasons given by Moore-Bick LJ., whose judgment I have had the advantage of reading in draft. I add a short judgment of my own in order to make two points, which I regard as emphasis for the decision we have reached, rather than as the expression of any original thought.
32. Speaking for myself, I have no difficulty with the phrase "An advertisement that – (a) contains sequential displays" in paragraph 4(a) of Class 13 in Schedule 2 of the 2007 Regulations. In my judgment, the noun "sequence" and the adjective "sequential" are ordinary words carrying the meaning of one person or object following another. This is the primary meaning given to the words in the Second Edition of the Oxford English Dictionary, and in my judgment the words are apt to describe the advertisements to which the local authority takes objection. As I understand it, a number of still advertisements follow each other for an allotted period of time: this sequence of advertisements is then repeated.
33. Mr. Fraser-Urquhart submitted, as I understood him, that for there to be a "sequential display" there had to be a connection between each item, so that each advertisement related to its successor or predecessor in some way. He thus seized with unfeigned enthusiasm on the example of traffic lights given by the judge in paragraph 24 of the judgment. He agreed with the judge that traffic lights were indeed a "consequential sequence" because, he argued, contrary to the judge's view, there was indeed a connection between the content of the colours in a sequence of traffic lights.
34. I do not think that paragraph 24 of the judgment indicates any error on the part of the judge, and I am wholly unable to give the words "sequential displays" the limited and restricted construction for which Mr. Fraser-Urquhart argued. The judge, in my view, was entirely correct in concluding, as he did in paragraph 26 of his judgment with the following words: -

….. Here these seven advertisements follow each other in the same sequence, for the same length of time, and simply rotate, while the display has the content unchanged. I therefore find that this is indeed a sequential display within Class 13 paragraph 4(a) and is thus not permitted…….

35. My second point relates to the decision of Blake J in R (on the application of JC Decaux UK Limited v. Wandsworth Borough Council [2009] EWHC 129 (Admin). I would like to express my specific agreement with what the judge said in paragraph 54 of his judgment about the 2007 Regulations and the need for cooperation and consultation between the owners of advertising sites and local authorities –

Conclusions

54. It seems that, in the light of the wording of new Regulation 13, there can be no return to the status quo as of right, and there would have to be an application for planning permission that is clearly not for this court to determine. As things stand, therefore, the school stands to lose the licence fee and the claimants to lose the use of the site that it had been using up until 2007, where its hoarding has long been displayed. It seems therefore that those in the position of the claimants who are proposing to make amendments to the site need to be very careful and think through the consequences of any changes before making them, and that might involve consultation with the relevant local authority…..

36. As I understand the matter, if an application for express consent is refused by a local authority, the owner of the advertising hoarding can appeal. That seems to me to be the proper and democratic process, rather than risk a breach of Class 13 which, as here, has lost the appellants their previous use of the site.
37. As I indicated earlier, these observations are, essentially, supplemental to the judgment of Moore-Bick LJ, with which I am in complete agreement.

Sir Anthony May:

38. I agree that this appeal should be dismissed for the reasons given by Moore-Bick LJ.