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, PLANNING COURT
Mr Justice Ouseley
CO44102017

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/10/2018

Lord Justice Coulson :

1. Introduction

1. The appellant owns an office building called Riverbank House ("the site") on the north side of the River Thames, just over Putney Bridge. On 6 October 2016, the local planning authority ("the LPA") served a Discontinuance Notice ("DN") on the appellant requiring it to discontinue the use of the site for the display of illuminated advertisements. Both the appellant, and the company operating the advertisements (JC Decaux Limited) sought to appeal the DN. The respondent appointed an inspector who, by way of Appeal Decisions dated 29 August 2017, refused the appeals. The appellant sought to challenge the Appeal Decisions in the Planning Court, but the challenge was rejected by Ouseley J on 6 December 2017. The appellant was subsequently granted permission to appeal.
2. The appeal raises issues about the proper scope of a DN which relates to a particular site, rather than a particular advertisement; the interplay between the 'deemed consent' regime and the 'express consent' regime; and the extent to which an LPA or a planning inspector is obliged to consider hypothetical alternatives to the actual advertisements in place before upholding a DN relating to a site.

2. The Statutory Framework

3. Pursuant to section 220(1) of the Town and Country Planning Act 1990, there is a specific code for the control of advertisements, set out in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ("the 2007 Regulations"). Regulation 4 differentiates between 'deemed consent' and 'express consent'. Regulation 6 within Part 2 of the 2007 Regulations grants deemed consent for the display of advertisements of any class specified in Part 1 of Schedule 3. Class 12 in Part 1 of Schedule 3 relates to any advertisements "displayed inside a building", subject to exceptions. Regulation 8 provides as follows:

"(1) Subject to paragraph (2), the local planning authority may, if it is satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public, serve a notice requiring the discontinuance of –

(a) the display of a particular advertisement for which there is deemed consent; or

(b) the use of a particular site for the display of advertisements for which there is deemed consent."

4. The National Planning Policy Guidance, at paragraph 45, says of this provision:

"A local planning authority may take discontinuance action if it is satisfied that such action is necessary to remedy a substantial injury to the amenity of the locality or a danger to members of the public. As 'substantial injury' to the amenity of the locality is a more rigorous test than the 'interests' of amenity, local planning authorities will need to justify this in their statement of reasons."

5. Regulation 17 provides for a right of appeal against the service of a DN. Schedule 4 Part 5 sets out the relevant modifications to the 1990 Act in respect of DNs. This provides at paragraph 2(1):

"Where an appeal is brought in respect of a discontinuance notice the Secretary of State may –

(a) allow or dismiss the appeal, or

(b) subject to subsection (1A)-

(i) correct any defect, error or misdescription in the discontinuance notice; or

(ii) reverse or vary any part of the notice (whether the appeal relates to that part of it or not),

and deal with the matter as if an application for express consent had been made and refused for the reasons stated for the taking of discontinuance action."

3. The DN and the Appeal Decisions

6. The DN served on 6 October 2016 identified the site as Riverbank House, 1 Putney Bridge Approach, London SW6 3JD. It went on:

"2. REASONS FOR ISSUING THIS NOTICE

The building occupies a prominent position in an open setting and is visible in long range from the approach from the north and from the south. Any illuminated advertisements displayed in or behind the windows of the building in this open setting, would be considered to result in substantial injury to the amenity of the locality, the views out of the three adjacent conservation areas and the setting of All Saints Church and Vicarage Gardens, both Grade II* listed and Putney Bridge itself which is a Grade II listed structure. This is demonstrated by the internally illuminated LED advertisements screen currently displayed inside the building, which are considered to form overly large, dominant and incongruous features, particularly during the hours of darkness. The Council is satisfied that for this reason it is necessary to issue this notice.

3. WHAT YOU ARE REQUIRED TO DO

Acting under the powers confirmed by Regulation 8 of the Regulations, the Council HEREBY REQUIRES YOU TO DISCONTINUE the use of the building for the display of illuminated advertisements falling within Class 12 of Part 2 of Schedule 3 of the [2007 Regulations] within a period of four weeks after the date on which this notice takes effect."

7. The appellant appealed on 13 December 2016 and the interested party appealed on the same date. The same inspector was appointed to deal with both appeals. She made a site visit on 15 and 16 August 2017 and her Appeal Decisions, which were in almost identical terms, were dated 29 August 2017. To avoid undue repetition, I set out below the material parts of the Appeal Decision in the form in which it was sent to the appellant.
8. Under the heading 'Main Issue', the inspector said:

"4. The main issue is whether the continued use of the site for the display of advertisements with deemed consent would be substantially injurious to amenity."

At paragraph 7 she said:

"The test in Regulation 8 requires that there must be 'substantial injury to the amenity to the locality or a danger to members of the public'. There is no danger to members of the public in this case."

And then, having set out her planning judgment, at paragraph 29, under the heading 'Conclusions', the inspector said:

"The Notice requires the discontinuance of the use of the building for the display of illuminated advertisements with deemed consent pursuant to Class 12 of Part 2 of Schedule 3 for the Regulation. Given the location and orientation of the building as a whole I consider for the reasons given above that any illuminated advertisement on the site would be substantially injurious to the amenity of the locality."

9. The substance of the inspector's planning judgment was in the following terms:

"The south facing site

15. The south facing site is most visible to pedestrians or those in vehicles travelling north over Putney Bridge on the western side although it can be seen by pedestrians travelling towards it on the other side for a short distance. There is no other general advertising in the area and for this reason the advertisement with its illumination and moving display is extremely prominent. This was particularly so at night when, at the time of my visit, the top four floors of the block were in darkness and those windows that were lit had blinds reducing the light. The advertisement, in all of its displays, was considerably brighter than those windows that were lit.

16. The advertisement, in what did not appear to me to be an atrium as described by the Appellant because the glass addition was blocked off from the two floors behind it and it was totally separate from the building, was in complete contrast with the greenery and trees of Bishop's Park and the Vicarage Gardens opposite during the day and the unlit space during the night. When exiting from the Gardens the advertisement was conspicuous and dominated the street scene as it did in from views towards it from most viewpoints. This was again particularly so at night.

…

19. In contrast, the illuminated advertisements for the Premier Inn are site specific, smaller and lower in luminosity than the advertisement at Riverbank House. The illuminated installation is not static and advertisements change regularly as part of the display. This leads to a flashing effect and a great variety of colour and light levels between the advertisements. The result is a distracting and disturbing pattern of light on the adjacent hotel which I consider has an adverse effect on its amenity.

The north facing site

20. The northern side of the building is very prominent in views from Fulham High Street given the open nature of Putney Bridge beyond and the green area of Bishop's Park and Vicarage Gardens. As with the south side there is no general advertising in the area and the large advertisement has a discordant and conspicuous impact on the edge of one Conservation Area and the beginning of another.

21. Also the flashing effect on the residential premises at Simms Court is greater than on the Premier Inn given its close proximity to Riverbank House.

22. My reasons above with regard to the glass addition, the lights in the tower and the scale of the advertisement on the south facing site also apply to the north facing site."

10. The appellant sought to challenge the Appeal Decisions. Only one part of the Statement of Facts and Grounds is relevant to this appeal. That is paragraph 44(a) which said:

"As such, the inspector erred in law in that she:

(a) failed to properly apply the test set out in Regulation 8(1) of the 2007 Regulations, namely whether prevention through the DN of the display of any form and size of illuminated advertisement pursuant to deemed consent under Class 12 anywhere within Riverbank House was "necessary…to remedy a substantial injury to the amenity of the locality"."

3. The Judgment of Ouseley J

11. In an extempore judgment dated 6 December 2017 at [2017] EWHC 3330 (Admin), Ouseley J rejected the challenge to the Appeal Decisions. At [4] he rightly identified the narrow basis of the challenge in the following terms:

"The challenge focuses not on the planning judgment made by the inspector that the two advertisements on the building were substantially injurious to amenity; that is an unassailable planning judgment. The grounds of challenge focus on whether she gave adequate reasons for her conclusion that the substantial injury to amenity meant that no part of the building should be used for illuminated advertisements. The focus of the challenge in that respect was not that there was any other part of the building which could be so used but that the north and southern edges of the wings within the triangular site fronting on to the main road could be used for other forms of illuminated advertisement than those to which the inspector refers specifically in her decision letter."

12. As to the appellant's suggestion that the inspector ought to have considered imposing conditions on the advertisements, Ouseley J rejected that argument for the reasons set out at [21]. Then in addressing the issue central to this appeal, namely whether the inspector improperly moved from the particular to the general in her reasoning, and impermissibly focused on the particular advertisements in place to answer the wider question as to what was necessary to prevent the use of the site for advertising generally, Ouseley J was equally clear. He said:

"22. The second point is whether the inspector ought to have confined the notice, as she could have done, to the two particular advertisements. This would have left the deemed consent intact in all other respects. This is, to a large extent, bound up with the third point. After all, if her conclusion was that no illuminated advertisements should be deemed to be consented on the building, there was no justification for confining the effect of the discontinuance notice in the way she suggested. If her conclusion on that was not lawful, then there could have been a reason for drawing a distinction between the two advertisements and any others to which the deemed consent applied, depending on what was lawful in her decision. But it needs to be borne in mind that if the discontinuance notice had been so confined, the issue would simply then have been what else could be put up in its place. The local authority, if objecting to what there was put up in its stead, would have been faced with a need to take discontinuance proceedings, as opposed to the claimant seeking express consent for what it wanted to put there, as it still can do, having demonstrated its acceptability. In view of the conclusions to which she has come however, on the cases presented, she had no choice but to uphold the notice as a whole.

23. The only question in this application is whether the inspector made the error, attributed to her, of reasoning solely by reference to the existing advertisements that illuminated advertisements could not be placed on the site pursuant to a deemed consent without substantial injury to amenity. In my judgment that argument must fail. There are a number of reasons why that is so. First, it seems to me to be perfectly clear, although the inspector did not say so in so many words, that she is accepting the case made by the local authority. She spends her time dealing with why she rejects the appellant's case, it is true, but it is clear that she must have considered the local authority's case and is clearly to be taken, in my judgment, as accepting that it has made out the points that it made to the extent that there should be no illuminated advertisement on the site at least without there being an express consent. She is not in a position to consider every single possible illuminated advertisement which might be put forward but she was in a position to say that that should not be done by way of a deemed consent, and she could not impose conditions on the deemed consent itself. Larger advertisements would still have deemed consent.

24. The second point is that the local authority and the appellant were content to treat the existing advertisement as illustrative of the general issues that arose from the illuminated advertisements, and their arguments from the general arose from their very different appraisals of the specific advertisements. The local authority contended that it illustrated how severe were the problems of the illuminated advertisements. By contrast, the appellants contended that it illustrated how attractive they were to the street scene. Each treated the specifics as illustrating the disadvantages or otherwise of illuminated advertisements in general in Riverbank House. The inspector clearly came down against the appellant's contention and was entitled, taking their arguments as expressed by them, to conclude that there were no illuminated advertisements that should be the subject of deemed consent. In so doing she was, in my judgment, reflecting the entire thrust of the appellant's case. No examples were put forward of alternative advertisements which could be in place which could avoid substantial injury to amenity and thus warrant a different form of discontinuance notice."

13. Ouseley J refused permission to proceed with the claim for judicial review, save in respect of paragraph 44(a) of the Statement of Facts and Grounds, set out at paragraph 10 above. He gave permission on that ground alone and then dismissed the claim for the reasons previously noted. The only issue on this appeal is whether the judge erred in failing to accept the submission set out in paragraph 44(a) of the Statement of Facts and Grounds.

4. The Proper Interpretation of Regulation 8

14. It is necessary to start with the proper interpretation of Regulation 8 because that, in turn, governs the proper scope and effect of a DN under Regulation 8(1)(b). It does not appear that the argument about the proper interpretation of the Regulation had arisen prior to the hearing before this court.
15. On behalf of the appellant, Mr Edwards QC submitted that, in order for the LPA to serve a valid DN under Regulation 8(1)(b), it had to be satisfied that: i) the use of a particular site for the display of advertisements was causing a substantial injury to the amenity of the locality; and ii) that it was necessary to remedy that injury. He rightly said that this was a relatively high threshold in planning terms, although he accepted that each element of the test involved classic planning judgment. The guidance (paragraph 4 above) adds nothing of substance. In my view, therefore, the fact that Regulation 8(1)(b) required a higher starting point than is sometimes the case in decisions involving planning assessments is immaterial to the issues on this appeal.
16. Similarly, although in Mr Edwards QC's opening submissions he said that there was no precautionary element about the test, he accepted in his closing submissions that the test was, or certainly could be, forward-looking. I think that is plainly right: a valid DN could be served under Regulation 8(1)(b) if the proposed use of the site for the display of advertisements is likely to cause substantial injury to the amenity of the locality.
17. What lay at the heart of Mr Edwards QC's case about Regulation 8(1)(b) was the proposition that, for a DN under Regulation 8(1)(b) to be valid, the LPA had to be satisfied that the substantial injury would be, to all intents and purposes, inevitable: that no alternative size, location, or type of advertisement of the relevant category or categories at the site (whether expressly identified by the owner or not) could avoid substantial injury to the amenity of the locality. In effect, his submission was that, if the LPA could not satisfy itself that no hypothetical advertisement might remedy the injury to amenity, the LPA's concern should be dealt with by a DN under Regulation 8(1)(a) only.
18. Mr Buley submitted that such an interpretation would render Regulation 8(1)(b) empty in practical terms. It would mean that it would only be on the rarest occasions that the LPA could serve a valid DN under that provision, because it would only be on the rarest occasions that they could be satisfied that any kind of advertisement of the relevant category on the site, no matter how big or how small, and no matter what form it took, would inevitably cause a substantial injury to the amenity of the locality such as to justify a DN relating to the site as a whole. Mr Buley submitted that it could not be the intention of the Regulation to work that way and that, as a matter of construction, Regulation 8(1)(b) did not require the LPA to go that far. He said that, on the basis of the words in Regulation 8, if the LPA identified an inherent likelihood of substantial injury to amenity caused by advertisements on a particular site, rather than injury caused by a particular advertisement, then a DN under Regulation 8(1)(b) was justified.
19. As a matter of interpretation, I consider that Mr Buley's submissions are correct. The straightforward distinction in Regulation 8 is between a particular advertisement (8(1)(b)) on the one hand, and a particular site (8(1)(b)), on the other. If the LPA reasonably conclude that there is or is likely to be a substantial injury to the amenity of the locality, caused not by a particular advertisement, but the use of a particular site for the display of advertisements of the relevant category, then a valid DN can be served under Regulation 8(1)(b). In addition, I consider that the LPA is not required to consider every hypothetical advertisement that might be put up on the site before reaching this conclusion, a point to which I return in greater detail in paragraphs 27-35 below.
20. In the present case, it is clear that both the LPA and the inspector concluded that there was a general problem with the display of illuminated advertisements on the site. Those problems are detailed in the passages from the Appeal Decision which I have set out in paragraph 9 above. As Ouseley J correctly noted, that reasoning is an unassailable planning judgment. On that basis, and on a proper interpretation of the Regulation, I consider that the LPA and the inspector were entitled to conclude that it was necessary to serve the more extensive notice under Regulation 8(1)(b).

5. The Context of Deemed Consent

21. I consider that this interpretation of Regulation 8 is supported by a consideration of the context in which a DN is served. As the heading to Regulation 8 makes plain, a DN brings to an end "deemed consent" only. It has no effect on express consent.
22. Throughout his written submissions, Mr Edwards QC was keen to stress what he said was the far-reaching effect of the DN in this case. That is perhaps at its starkest at paragraph 25 of his Skeleton Argument where he asserts that the effect of the DN "is to prevent the display of (a) any illuminated advertisement (b) of any form (c) anywhere within Riverbank House pursuant to deemed consent conferred by Regulation 6 and Schedule 3, Class 12 of the 2007 Regulation". This proposition is then enlarged upon at paragraph 39, where he asserts that the test for service of a notice under Regulation 8 was "whether the prevention of the display of any form of illuminated advertisement anywhere within Riverbank House was 'necessary…to remedy a substantial injury to the amenity of the locality'".
23. In my judgment, these assertions run the risk of significantly overstating the effect of the DN. All that the DN did was to bring to an end the LPA's deemed consent to the illuminated advertisements on the site. That deemed consent was, by its very nature, general in scope: it existed only because the advertisements in question were inside the building. The DN did not prevent the appellant from making an application for express consent in relation to any advertisement in any specified form.
24. In order to support his approach to Regulation 8(1)(b), therefore, Mr Edwards QC was obliged to argue that, although as a matter of form the DN in this case was concerned only with deemed consent, it would in substance have an inevitable impact on any application for express consent for illuminated advertisements. He argued that, as a matter of logic, if the LPA had discontinued deemed consent for the use of this site for illuminated advertisements, then they would inevitably have to refuse any application for express consent in respect of any illuminated advertisements.
25. I do not accept such a broad proposition. The Regulations are careful to keep deemed consent and express consent separate. The DN only has an effect on deemed consent. Express consent is not engaged by the Regulation 8 process. If the appellant made an application for express consent for, say, two illuminated advertisements one foot square, which did not exhibit some of the other features identified by the inspector (changing images, high luminescence etc), the DN would plainly be irrelevant to any consideration by the LPA of the merits of that application.
26. For these reasons, I reject Mr Edwards QC's conclusion (paragraph 40 of his skeleton argument) that the effect of the DN is "draconian". The effect of a DN under Regulation 8(1)(b) is not to prohibit the use of a site for any advertisements; it has the much more limited effect set out above.

6. The Proper Width of Any Enquiry

27. The analysis above relating to the proper interpretation of Regulation 8(1) and the importance of the distinction between deemed and express consent also helps to provide an answer to the other principal limb of the appellant's case, namely that the LPA and/or the inspector wrongly focussed on the advertisements on site, and not the injury caused by advertisements there more generally. Mr Edwards QC's submission was to the effect that, since the DN and the Appeal Decisions related solely to the particular advertisements then on display on the site, that was insufficient to permit the service of a valid DN under Regulation 8(1)(b). He said that, for the DN to be valid, the LPA (and subsequently the inspector) had to be satisfied that there was no possible advertisement that could be displayed on the site without causing substantial injury to the amenity of the locality.
28. I have no hesitation in rejecting that submission. First, I consider it flows from the appellant's incorrect interpretation of Regulation 8(1) and the fact that the DN discontinues deemed consent only.
29. Secondly, I consider that it is wrong both as a matter of planning law and as a matter of practicality, to say that (regardless of the case being made by the owner of the site) the LPA or the inspector on appeal were required to satisfy themselves that every other conceivable advertisement that might have been installed at the site would also cause substantial injury.
30. It has long been recognised in planning law (and indeed in any other field where a decision maker has to consider two opposing cases) that the decision-maker is not required in law to stray beyond the parties' respective cases. Thus, in Marie Finlay v The Secretary of State for the Environment & London Borough of Islington [1983] J.P.L. 802, Forbes J said:

"It was one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise: MJ Shanley Limited v Secretary of State & South Bedfordshire District Council [1982] J.P.L. 380. It was a highly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition which might be attached which might save this planning application."

31. This approach was endorsed by the Court of Appeal in Top Deck Holdings Limited v Secretary of State for the Environment & Woking Borough Council [1991] J.P.L. 961. Mann LJ said that an inspector should not have imposed on him an obligation to cast about for conditions not suggested before him.
32. Moreover, from a practical point of view, it would be unworkable if the LPA (before serving the DN), or the inspector (on appeal) were required to consider every potential advertisement that could be erected within the building, and to ask whether that hypothetical advertisement would or might give rise to a substantial injury to the amenity of the locality. That would place an impossible burden on the LPA and on the inspector which, given that the DN goes to deemed consent only, would be unwarranted.
33. Thirdly and in any event, that is not what happened in this case. As Ouseley J noted in his judgment, and as was conclusively demonstrated when we were taken to the written statements of each side's case which were produced for the inspector, there was no attempt by either side to identify other potential advertisements that would or might not have been injurious. Instead both parties focused on the particular advertisements on the site, because both parties recognised that that was the relevant thrust of any enquiry for the purposes of Regulation 8(1)(b).
34. Mr Edwards QC argued that, because the inspector had the power to deal with the matter as if it was an application for express consent and could therefore attach conditions thereto (see paragraph 5 above), the inspector had the power to allow entirely different kinds of advertisements at the site to those which were in situ. He said that the inspector erred in not exercising that power here. He said that she had been asked to do so, and he took, for example, paragraph 5.34 of the appellant's statement of case under the heading 'Other Matters', where the appellant (by way of a fall-back) asked the inspector to place conditions on the use of the existing advertisements.
35. In my view, this argument fails at every level. First, it is plain that the whole thrust of the appellant's statement of case was in respect of the advertisements actually present on site. Even paragraph 5.34 was an argument in respect of those advertisements, not different hypothetical advertisements. Secondly, it would have been quite impossible for the inspector to consider, of her own volition, and without any material provided by either side, what illuminated advertisements might be possible on the site, what size they should be, whether they should have moving images, and what the luminescence level should be. Indeed, I consider, that if the inspector had undertaken such an exercise, one or more of the parties might properly have complained that the result was a breach of natural justice.
36. The appellant's undisguised aim was to hang on to the existing advertisements. The appellant made no application for express consent, let alone an application by reference to new/varied conditions. It cannot now be said that the inspector should have undertaken such a task herself.
37. For these reasons, therefore, I consider that the width of the inquiry suggested by Mr Edwards QC as being appropriate for the LPA before the DN, or for the inspector on appeal, is unrealistic and outside the scope of Regulation 8. In my view, there was more than sufficient material available to allow the LPA and the inspector to reach their respective conclusions that the DN had been validly served under Regulation 8(1)(b).

7. Conclusions

38. Mr Edwards QC argued that the inspector had adopted the wrong test or that, if she had adopted the right test, her reasoning was inadequate. I have set out the inspector's self-directions as to the test that she was applying at paragraph 8 above. In the light of my interpretation of Regulation 8 and the context of deemed consent, I am in no doubt that she applied the correct test.
39. As to the inspector's reasoning, Mr Edwards QC's criticisms were all bound up with the inspector's focus upon the advertisements actually on display. For the reasons I have given, I consider that that submission is based on an incorrect and unworkable interpretation of Regulation 8(1)(b) and a failure properly to differentiate between the deemed consent and the express consent regimes. Moreover, the inspector's reasoning faithfully mirrored the submissions that were made to her and, for the reasons explained by Ouseley J, cannot now be criticised.
40. Accordingly, I would dismiss this appeal.

Lord Justice Hickinbottom :

41. I agree that the appeal should be dismissed for the reasons given by my Lord, Coulson LJ.

Lord Justice Hamblen :

42. I also agree.