England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH
DIVISION, ADMIN COURT (Supperstone J)
Ref: C0/10385/2011

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2012

Lord Justice Maurice Kay :

1. Dale Winfield is the owner of land by the junction of the A56 and A580 in Haslingden. Over the years he has caused advertisements to be displayed on the land. They were originally attached to wooden posts but more recently to a large wooden structure which is over 13 metres in length and 2 metres in height. All the advertisements have related to Mr Winfield's retail business. The issue on this appeal is whether by displaying advertisements in these ways Mr Winfield is acting in breach of planning control. His case is that he is not because he has the benefit of deemed consent. In February 2011 he made an application to Rossendale Borough Council for a Certificate of Lawful Use or Development pursuant to section 191 of the Town and Country Planning Act 1990 (the 1990 Act). It was refused. He appealed to an Inspector appointed by the Secretary of State but on 20 September 2011 the appeal was dismissed. He then applied to the Administrative Court pursuant to section 288 of the 1990 Act for an order to quash the decision of the Inspector but his application was refused by Supperstone J on 31 January 2012: 2012 EWHC (Admin). He now appeals to this Court, permission having been granted by Carnwath LJ.
2. It is common ground that, in the circumstances of this case, the application for a Certificate of Lawful Use or Development had to satisfy the conditions for deemed consent under Class 13 of Part I of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (the 2007 Regulations). Class 13 is headed "Advertisements on sites used for preceding ten years for display of advertisements without express consent". It is described as follows:

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

The Inspector's decision

3. The Inspector decided the appeal on written submissions and with the benefit of a site visit. His reasoning includes the following passages:

"3. …This appeal is in relation to a claim that the use of the land for displaying advertisements has become lawful for planning purposes, and therefore incapable of being enforced against under section 172 of the Town and Country Planning Act 1990.

…

5. The wooden framework upon which the current advertisement has been displayed has no life of its own. Its sole purpose is to support the advertisements and I regard it as an intrinsic part of it. …

6. …I have no reason to dispute that signs first appeared on the land in 1997 and I saw that the land is still to this day being used for the display of advertisements for the appellant's nearby retail premises. It is clear from the photographic evidence that the number and location of signs has changed from time to time. The critical issue is whether within the ten year period necessary to establish lawfulness there has been any material break in the use of the land for the purposes of displaying advertisements. This has to be determined as a matter of fact and degree.

7. …The appellant also says that the signs have been removed from time to time at the request of the Council, but that the requests were usually verbal. He assumes that any paperwork would be contained in an enforcement file, but has been told by the Council that no such file exists.

…

10. …It is clear from the appellant's reference to his expectation that there would be an enforcement file containing relevant paperwork that the 'request' from the Council for him to take down the advertisements was the result of enforcement investigations. The appellant had no desire to remove the advertisements, but clearly did so under threat of further action by the council if he did not. After a few weeks, when the dust had settled, he would re-establish the advertisement display.

11. It is clear to me that the appellant's actions in moving the advertisements when required to do so by the Council were intended to remedy the breach of control taking place at the time, thereby avoiding any further action by the Council. As a matter of fact and degree, the removal of the advertisements under such circumstances, for however short a period, represented a material break in the use of the land for displaying advertisements. When the use recommenced some time later, a new breach of control would then have occurred and the ten year clock would start afresh. The appellant's evidence is not sufficiently precise and unambiguous for me to determine that, on the balance of probability, the land has been used for the necessary ten year period, uninterrupted by any break in the use in order to stay off enforcement action by the Council. I conclude that the Council's decision not to issue a LDC was well-founded, but not for the reasons they give. Nevertheless a LDC cannot be issued and the appeal therefore fails."

The grounds of appeal

4. The primary ground of appeal is expressed in these terms:

"The judge erred in concluding that the Inspector's failure to consider the issue of deemed consent under Class 13 of the 2007 Regulations was immaterial as he would have inevitably have found that the appellant's use of the site was not continual."

5. The point sought to be made is that the Inspector did not refer to Class 13. His consideration of the ten year period was by reference to section 171B of the 1990 Act, by which, in relation to a breach of planning control, "no enforcement action may be taken after the end of the period of ten years beginning with the date of breach". It is suggested that if the Inspector had focused on Class 13, he would or should have concluded that there were no material breaks. Reliance is sought to be placed upon Westminster City Council v Moran [1999] 77 P & CR 294.
6. The second ground of appeal is that, in any event, the unbroken presence on the land of the wooden posts and the wooden structure for more than ten years brings the case within Class 13 because, even during the periods when nothing was attached to them, they continued to be "advertisements" for present purposes.

The Class 13 point

7. It is true that, in his analysis, the Inspector focused on section 171B rather than Class 13. The real question, however, is whether (as Supperstone J held) the findings made by the Inspector were such as would take the case outside Class 13 in any event.
8. Moran concerned the prosecution of a publican who had regularly placed two advertising boards outside his public house for the purpose of preventing drivers from parking illegally on a yellow line and obstructing deliveries to the public house. He was acquitted by the magistrates. On a prosecution appeal to the Divisional Court, the case stated related that he had been "putting the boards out regularly since 1974 without objection". The significance of 1974 is that in the Regulations then in force the user had to have been since 1 April 1974 rather than simply ten years. The appeal was dismissed. Simon Brown LJ said (at page 298):

"I see no good reason for supposing that Parliament was ignorant of the difference in meaning between 'continuous' and 'continual' or intended to overlook them. On the contrary, it seems to me plain that the word 'continually' was precisely chosen and that Class 13 was intended to encompass advertising which was 'regularly occurring' (another meaning given to 'continual' by the Shorter Oxford Dictionary) irrespective of whether it was uninterrupted, provided only and always that it had existed since April 1, 1974.

Assume a site which has been regularly used to display advertisements over the 24 year period in question, but that from time to time within that period, for whatever reason, there has been an occasional period, perhaps of some months, when the site has not been used for that purpose. It would, to my mind, be surprising if a deemed consent were denied to such a site because of such interruptions in the use. Again the matter is ultimately one of fact and degree, and I would, therefore, reject the appellant's arguments upon this information … "

Does this reasoning avail the appellant in the present case?

9. Supperstone J thought not. He said (at paragraph 14):

"In contrast with the type of situation under consideration in Moran, (occasional non-use by the landowner), where the local planning authority requires an advertising activity to cease with a threat of enforcement action, and the landowner complies contrary to his will, the use is not merely interrupted, it ceases. Subsequent resumption of the same activity constitutes … a new chapter in the planning history."

He later added (at paragraph 15):

"There would be a lacuna in the statutory system of planning control if compliance with threatened enforcement action, with resumption constituting a fresh breach of planning control, was sufficient to break the ten year immunity period for the purposes of section 171B of the 1990 Act, but not necessarily sufficient to prevent deemed consent arising under Class 13."

And (at paragraph 16):

"That finding as to a material breach applies necessarily, in my view whether one is considering section 171B or Class 13 because of its character, namely that of cessation because of a local authority threat of action. The consequence is a new chapter in planning history. In my view, whether one is considering continual use or continuous use, the result must necessarily be the same. The use in question as ceased and the resumption is a new breach of planning control."

10. I entirely agree. The Inspector's finding of a material break or breaks in the face of threatened enforcement action, albeit in the context of a section 171B analysis, negates continual use for ten years as required in relation to Class 13.
11. I do not consider that, in the circumstances of this case, anything turns on the use of the word "continually" as opposed to "continuously" in Class 13. The two words often cause confusion. My resort to the Concise Oxford Dictionary yields a definition of "continual" as meaning "always happening; very frequent and without cessation", whereas "continuous" is defined as "connected, unbroken; uninterrupted in time or sequence". Here, Mr Winfield had undoubtedly brought about cessations in the advertising. He had done so specifically as a result of threatened enforcement action which would otherwise have ensued. It is suggested on behalf of Mr Winfield that by referring to "intention" in paragraph 11 of his Decision, the Inspector impermissibly introduced an element of subjectivity into his reasoning. I consider that to be too strict an approach to the text of the Decision. The fact is that, whenever Mr Winfield has removed a sign or banner in response to a threat of enforcement, there has been a cessation in the advertising until he has deemed it safe to resume. There is a real difference between an interruption caused by (say) the taking down of an advertisement pending the anticipated arrival of another one and a cessation. I have read the judgment of Elias LJ in draft and I agree with it on this (and, indeed his other) points.
12. As Supperstone J intimated, there are sound policy reasons why this approach should prevail. It would be regrettable if, in circumstances such as these, a local planning authority might be deterred from light touch intervention and propelled into coercive action, such as by enforcement notice, prosecution or injunction proceedings, because, without it, time would continue to run for the purpose of Class 13. For all these reasons I would reject the first ground of appeal.

"Advertisement"

13. I turn to the second ground of appeal and the submission that the wooden posts and the wooden structure, even when unadorned, continue to be "advertisements". The word "advertisement" in Class 13 has the meaning given to it by section 336(1) of the 2009 Act:

"'Advertisement' means any word, letter, model, sign, placard, board, notice, awning, blind, devise or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed, or adapted for use, anything else principally used, or designed or adapted principally for use, for the display of advertisements, and references to the display of advertisements shall be construed accordingly."

14. This is difficult drafting, as was observed by Popplewell J in Westminster City Council v Secretary of State for the Environment [1990] 59 P & CR 496 (at page 500). In Butler v Derby City Council [2005] EWHC 2835 (Admin) Sullivan J said (at paragraph 18):

"There is a degree of circularity in this definition … if one asks, what is an advertisement, the answer is, at least in part, something that is 'in the nature of, and employed wholly or partly for the purposes of, advertisements'. In this respect the definition of an advertisement is like the definition of the proverbial elephant. One knows an elephant (or advertisement) when one sees it because it is in the nature of an elephant (or advertisement)."

15. The submission on behalf of Mr Winfield is that the latter part of the definition, beginning with the word "includes", brings within the meaning of "advertisement" a "hoarding or similar structure used or designed, or adapted for use, for the display of advertisements". The structure need never have had upon it anything recognisable as an advertisement. It would be sufficient, if, for example, it had merely been designed or adapted for use for the display of advertisements.
16. At first blush, this analysis is counter-intuitive. However, if it is right, then there have been no material breaks in the display of advertisements on Mr Winfield's land. At all material times, there have been either signs or notices or there has been a wooden structure designed or adapted for the display of such signs or notices.
17. Supperstone J rejected this construction in the following short passage (at paragraph 21):

"In my view, regard must be had to the words 'employed, wholly or partly, for the purposes of advertisement, announcement or direction, …that being so, the structure must be employed wholly or partly continually for those purposes to fall within the definition of 'advertisement' in the Act."

That is essentially the approach urged upon us on behalf of the Secretary of State.

18. As Sullivan LJ observed in Butler (at paragraph 23), "advertisement" was given a very broad meaning for the purposes of the Act. We should not lose sight of the fact that the primary purpose of Part VIII of the 1990 Act and the 2007 Regulations is to facilitate the control of advertising. It appears under the rubric "Special Controls". Provisions which benefit a landowner and limit control, such as deemed consent by way of Class 13, are in the nature of exceptions. A control mechanism is relaxed because there has been a lengthy period of official acquiescence or tolerance. It seems to me that the reason for the very broad definition of "advertisement" is that it facilitates control by guarding against the exploitation of loopholes. It is a form of anti-avoidance measure. Thus, within the ten year period, it enables the local authority to control not just a sign etc but also the structure to which it is attached. But does that necessarily mean that a bare, unadorned structure remains an "advertisement" in circumstances such as those of cessation in the present case, with the consequence that there is continual display? In my judgment, it does not.
19. During the period of cessation, if one were to pose the question – What product or service is being advertised by the unadorned structure? – the common sense answer would be: None. I am satisfied that common sense can be accommodated within the cumbersome wording of the definition. During the period of cessation, the unadorned structure is no longer "in the nature of, and employed wholly or partly for the purposes of, advertisement" and it cannot feed the continuance required by Class 13. I accept that this interpretation is at or near the limits of the permissible, but it seems to me to serve the purpose of the legislation and to chime with common sense. If it were not correct, it would mean that a landowner who erects a structure with the sole intention of eventual use for advertising, but who does not adorn it for ten years, would immediately obtain the benefit of Class 13 if he were to commence active advertising at the commencement of the eleventh year. I do not believe that the legislation was intended to benefit advertisers (including advertising companies) in that way.

Conclusion

20. It follows from what I have said that I would reject both grounds and would dismiss the appeal. I thank counsel for their helpful, indeed formidable, submissions.

Lord Justice Elias:

21. I, too, would dismiss the appeal. At the heart of the appellant's case lie two connected propositions. The first is that a break in the display of the advertisements does not necessarily involve the conclusion that there was no continual use during the preceding ten years. It will only do so if the interruption is material: see the observations of Simon Brown LJ in the Moran case, to which the Vice President has referred.
22. The second proposition is that it is irrelevant why the break occurs. The fact that it may have been brought about under threat of enforcement or other legal sanction is wholly immaterial. The only question is whether, as a matter of fact and degree, the interruption is sufficiently material to break the period of uninterrupted user so that the ten year period has to start afresh. The Inspector did not engage with that question and the matter would have to be remitted for the relevant findings to be made.
23. I reject the second proposition. As Lord Mance observed in Welwyn Hatfield Borough Council v Secretary of State for Communities & Local Government [2011] UKSC 15 [2011] 2 AC 304 at para 54, statutory periods of this kind:

"must have been conceived as periods during which the planning authority would normally have been expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo should prevail."

24. The appellant's position is that it is not enough to discover and threaten enforcement and thereby cause the land owner to change his or her conduct; some positive enforcement sanction must be taken within the ten year period in order to bring an end to the period of user.
25.  I do not accept that this should be required. In my judgment, the interruption in user which results from the threat of some form of legal sanction is qualitatively different from interruptions which flow from the fact that there are periods when the land owner has no specific advertisement which he wishes to display. In the former case he is positively accepting that his unlawful use has been discovered and should be stopped; in the latter there is no such acceptance, and the interruption occurs simply for his own convenience.  I agree with the inspector that interruptions of the former type will automatically bring the user period to an end, however short their duration.  As Sir Stephen Sedley noted in argument, there may be difficult cases where it is not clear what caused the interruption. But that is not this case. The inspector made an unequivocal finding that the advertisements were taken down to remedy the breach of planning control.
26. In my judgment, this analysis also dictates the answer to the second issue, namely whether there was in fact no interruption at all because the wooden structure, which remained on site at all times, was itself an advertisement as defined.  In order to be an 'advertisement' within the meaning of the definition the structure must be one which is designed or adapted "for the display of advertisements". Once the land owner accepts by his actions that the structure cannot be used for that purpose, and as a consequence does not use it for that purpose, the statutory definition is not satisfied.  There is a cessation in user and the ten year period must start afresh.
27. Accordingly, I would dismiss the appeal.

Sir Stephen Sedley:

28. I agree with both judgments.
29. It ought nevertheless to be acknowledged that our purposive construction of the definition in s.336(1) has been required in order to make working sense of Class 13. This is not an ideal mode of legal reasoning. Although, as the Vice-President says, the appellant's construction of the definition is counter-intuitive, it has the primary virtue of apparent loyalty to the text. I would hope that departmental attention will be given to clarifying the legislation.