England and Wales High Court (Administrative Court) Decisions

RETAIL MEDIA and SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS and MACCLESFIELD BOROUGH COUNCIL [2000] EWHC Admin 398 (11th October, 2000)

Case no: CO/668/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 11 October, 2000

MR JOHN STEEL QC, ROBERT PALMER and MISS DAVIES (for Judgment) instructed by Sisman Nichols Solicitors, Bristol BS8 1SL) appeared on behalf of the Appellant
MR J MAURICE and MS ALICE ROBINSON (for Judgment) (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent

MR DUNCAN OUSLEY QC
Retail Media Ltd., the Claimant and formerly known as Citilite Ltd., specialises in the display of internally illuminated poster panels. It lost an appeal which it made to the Secretary of State against Macclesfield Borough Council's refusal of express advertising consent for an internally illuminated 6 sheet poster panel outside a supermarket, close to Poynton town centre and nearly opposite a bus shelter with two illuminated 6 sheet poster panel advertisements integrated into it.
The written representations appeal was dismissed because of the adverse visual impact which the proposal would have. The Decision Letter dated 17^th January 2000 was written by an Advertisement Control Officer, a specialist in this type of appeal within the Planning Inspectorate.
That decision is now challenged pursuant to s288 Town and Country Planning Act 1990 on three grounds: first, a failure on the Inspector's part to deal with the Claimant's argument that the advertisements on the bus shelter opposite were comparable, and that for consistency, the Claimant's proposal should be allowed; second, a policy was being applied, which permitted of no exceptions, whereby bus shelter advertisements were treated as irrelevant or different regardless of individual circumstances and third that the Inspector gave inadequate reasons for his conclusions, if any, on the comparability and relevance of the bus shelter advertisements relied on by the Claimant.
It is necessary to set out certain statutory provisions. Both the advertisements which are the subject of this appeal and the bus shelter advertisements are subject to the express consent procedure in the Town and Country Planning (Control of Advertisements) Regulations 1992 No. 666. Regulation 4 provides the basis on which the powers are to be exercised:
4.-(1) A local planning authority shall exercise their powers under these Regulations only in the interests of amenity and public safety, taking account of any material factors, and in particular -
(a) in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there;".
Regulation 15 and Schedule 4 apply, with minor modifications, the appeal provisions of ss 78 and 79 Town and Country Planning Act 1990 to appeals to the Secretary of State in respect of advertising consent refusals. Regulation 4 accordingly applies to the Secretary of State.
Two features of Regulation 4 should be noted: first, the limited grounds on which decisions are made, and amenity not public safety was the issue in this case; second, the power, when considering the general characteristics of the locality to disregard any advertisement being displayed there. This latter provision permits but does not require the planning authority or the Secretary of State to assess the character of an area without that being affected by advertisements already erected. This can prevent an area's character being determined by either past regrettable decisions or by an existing accumulation of posters.
There is policy guidance in relation to advertisement control contained in PPG 19 "Outdoor Advertisement Control". Paragraph 14 is important:
14. Amenity considerations may sometimes appear to be based on a subjective judgement. It is thus important for the LPA to be consistent in assessing visual impact in similar surroundings, so as to minimise the scope for prospective advertisers to criticise apparently inconsistent or unreasonable decisions."
This need for consistency is emphasised in the Annex to PPG 19 paragraph 3, where the Secretary of State affirms that that is his approach in appeals. That Annex also contains other criteria against which it advises that advertisements be assessed. What is important for present purposes is not so much the criteria which it does contain but the absence of any guidance to the effect that advertisements on bus shelters, or on street furniture cannot be relevant to consistency in relation to free standing panels, where there are similarities in size.
In its short grounds of appeal against the Council's refusal of consent, the Claimant relied on what it said was the Council's inconsistency of treatment as between the proposed panel, fourteen illuminated 6-sheet poster panels on bus shelters in the Borough, and in particular two such poster panels on the bus shelter opposite the appeal site. In its short representations, whilst generally accepting the Council's description of the site and surrounding area, the Claimant focussed on its consistency argument again, though this time putting the greater emphasis on the "almost identical" nature of the poster panels on the bus shelter opposite the appeal site and following up with the reference to the fourteen bus shelters.
This consistency argument was clearly a major plank in the Claimant's case to the Inspector. The Council's case did not address it but focussed on the adverse amenity impact of the particular proposal. Its brief and general description of the site and surrounding area did not refer to the bus shelter opposite or elsewhere.
In his Decision Letter, the Inspector, strictly the Advertisement Control Officer, accepted that brief and general description. He described the street scene himself, but made no reference to the bus shelter opposite. His conclusions are set out in paragraphs 5 to 8 of the Decision Letter as follows:
"5. Measuring some 1.9 metres high by 1.3 metres wide, the free standing poster panel would be mounted on a roughly 0.6 metre high plinth. The double sided panel would be sited on a traffic island close to the supermarket's car park entrance. Here it would be forward of the supermarket's building line, some 5 metres or so from the corner of the building and roughly 10 metres from the neighbouring building on the other side of the car park entrance. I consider that, as a consequence, the free standing panel would be viewed as an isolated, exposed feature.
6. The presence of the panel's roughly 2.5 square metre displays, in this exposed situation, would be accentuated by their roughly 2.5 metre height and, after dark, by their full internal means of illumination. And because of its bulk and overall height, I consider that the panel, which would be considerably taller and wider than the vast majority of passersby, would appear as an excessively large and intrusive structure in the predominantly pedestrian setting of this shopping frontage.
7. Moreover it is my view that, despite the character of the appeal premises and its near neighbours, because of its bulk, height and exposed forward position, the proposed poster panel would appear as an obtrusive and unduly assertive commercial feature. And I consider that the panel would look at odds with the prevailing character of this street scene where, although there are many properties in commercial uses, these are for the most part of a modest scale.
8. For the reasons given above, and in consideration of all the material factors, I conclude that the display of the internally illuminated 6 sheet poster panel would be detrimental to the interests of amenity. You have drawn my attention to advertisements on bus shelters throughout the Borough, suggesting that this is indicative of an inconsistent approach by the Council. However, I consider that displays on bus shelters are not directly comparable in amenity terms because they are incorporated into substantial items of street furniture, whereas the appeal panel is a free standing display."
Mr Steel Q.C's primary ground of challenge is that the Inspector has ignored or failed to give reasons for any conclusions which he reached on the Claimant's case that consistency as between one decision and another weighed in favour of the grant of consent. This consistency point required a comparison by the Inspector of the relative effects of the proposal and of the bus shelter posters, particularly of those opposite, on the character and amenity of the area.
Mr Maurici, who appeared for the Secretary of State, submitted that the Inspector was entitled to disregard the bus shelter opposite and had done so, when considering the character of the area. He gave his reasons for rejecting the proposal on its merits, namely its adverse effect on amenity. In those circumstances, it was unnecessary for him to go in detail as to why other advertisements were different and he had sufficiently dealt with the Claimant's point. After all, the Inspector should not permit a proposal with an adverse impact, whether or not something consistently adverse has been permitted elsewhere. If he thought that the bus shelter posters were not adverse but neutral or even beneficial, then there was a clear contrast with his view of the appeal proposal.
Attractively though Mr Maurici presented his submissions, I do not accept them. I recognise that at some point in his analysis the Inspector had regard to the bus shelter posters, because in paragraph 8 of his Decision Letter he specifically refers to bus shelters in the generality so as to say that they are not directly comparable, and the general comment may cover the particular bus shelter opposite as but particular illustrations of a more general point.
However, in my judgment, the Inspector has not given adequate reasons for his conclusions, dealing with the substantial point of consistency raised by the Claimant. This was the principal important controversial issue. First, it is to my mind wholly unclear how the Inspector approached his analysis of the character of the locality: did he consider that the bus shelter posters opposite had no effect on the character of the locality or did he consider that they had but that it should be disregarded under Regulation 4(1)(a), and if so for what reason, or did he consider that the only point arising in respect of them related to consistency? In my judgment, the Claimant is entitled to be told if an otherwise material consideration is being disregarded by virtue of a statutory power and if so, briefly, why. The recipient of this letter, the informed reader, is unable to discern what approach was adopted. I do not accept Mr Maurici's submission that as the bus shelter was ignored in the description of the character of the locality, it must have been pursuant to Regulation 4(1)(a), nor do I accept that no reason need to be given, for the exclusion of an otherwise material factor. The Inspector's approach to the character of the area bears directly on his consideration of amenity and of consistency, and indeed on his consideration of the weight to be given to consistency.
Second, it is to my mind wholly unclear why he reached the conclusion that the posters in bus shelters opposite, or generally, were not directly comparable. The Inspector says that they are not free-standing but incorporated into substantial items of street furniture. However, that glimpse of the obvious tells one nothing of how that fact bears upon the issue of amenity and consistency in the approach to visual amenity. The reasoning, to be adequate in dealing with the Claimant's case in the context of the relevant amenity issue, must say why the asserted comparables are not comparable in amenity terms. The Claimant was obviously relying on the bus shelter posters opposite as an illustration of a general point; to say that it is different because they are on a bus shelter fails to deal with the Claimant's point that the bus shelter is largely irrelevant to the amenity impact of the posters.
I do not for one moment suggest that each asserted comparable has to be dealt with individually; items of street furniture which raise the same point can be dealt with by way of a general comment. Still less do I accept Mr Steel Q.C's suggestion that the Inspector is obliged to call for information as to where relevant comparables can be seen, if the parties have not provided him with it. The Inspector is entitled to draw on his overall specialised experience in this area. His reasoning can be brief. But he still has to deal with the substantial controversial issues.
I do not consider that it is obvious that the differences between posters on a bus shelter and free standing posters have different amenity effects, such that the Inspector's implicit reasoning is obvious. Indeed, the absence of reasoning leaves it unclear as to whether the Inspector examined the matter from the amenity aspect. He may have just stopped at thinking that the difference in structures was a sufficient mark of distinction. It is not; the difference, in dealing with allegedly consistent examples, needs to be expressed in amenity terms.
I do not consider either that the Inspector's reasoning can be supplemented by the knowledge available to the informed reader. Not merely do I accept that the Claimant is genuinely unclear as to what the Inspector's reasoning is, but as an informed, indeed specialist reader of Decision Letters from a specialist branch of the Inspectorate, reference to other typical letters does not clear up the matter. If the Claimant was in fact perfectly well aware from other letters of the reasoning in amenity terms behind the sort of distinction between free-standing and integrated poster panels which this Inspector drew, there could well have been a basis upon which the reasoning in one letter could have been seen as a form of shorthand between cognoscenti, or at worst as an omission causing no prejudice. However that is not the case here.
I was referred to four other Decision Letters received by the Claimant on other appeals which it had made, in the context of its next ground but I examined them to see if they cast light on the reasoning of which in practice, it could be said, the Claimant was perfectly well aware.
These four letters each distinguish free-standing poster panels from those incorporated into bus shelters. At Colwyn Bay, in 1998, this was because bus shelters were "substantial items of street furniture in their own right and would exist in any case if the advertisements were not there". Yet it is the amenity impact of the posters which is at issue. At Prestwich in 1999, the distinction was drawn on the basis that the bus shelter was performing a public service; that is wholly immaterial. At Blackpool in 1999, the same Inspector as at Prestwich relied upon that same irrelevant factor. At Derby Dale in 1999, that same Inspector relied upon that same factor, but adding that "a bus shelter moderates the impact of a panel compared to a stand alone one". It is possible in the first and last letters to discern some reasoning which could be relevant. But given the irrelevant reasoning and the degree of judicial speculation required, those letters are wholly insufficient to make good the omission in reasoning even to a specialised informed reader.
Of course, I accept as Mr Maurici submits, that the Claimant has to show that the deficiency in reasoning caused it prejudice, as required by Save Britain's Heritage v No. 1 Poultry Ltd. 1991 1WLR 153 at p 167E per Lord Bridge. In my judgment, the prejudice arises first because there is substantial doubt as to whether the decision was within the powers of the Act: did the Inspector rely on Regulation 4(1)(a) or omit to consider the bus shelter or do so for a non-amenity reason? Did he treat it as different, when dealing with consistency, for an irrelevant reason? Second, there is prejudice because the Claimant does not know how to deal with this commonplace comparison in its business. On this first ground, I will allow the appeal.
I can deal more briefly with Mr Steel Q.C's other grounds. His third ground which relates to adequacy of reasons has already been dealt with. His second ground alleges that the Secretary of State operates a fixed rule of policy, permitting of no exceptions, whereby bus shelter posters are disregarded when assessing character or consistency. He relied upon the four decision letters to which I have already referred, as representative samples of those which the Claimant had received.
There is bound to be very considerable similarity between Decision Letters dealing with advertising consents where the issue is whether bus shelters are properly seen as examples with which consistency is to be achieved. The Government and the Claimant expect a consistent approach. The range of bus shelter types cannot be so large as to call for each bus shelter to be examined for peculiarities and judgments made bus shelter by bus shelter. The Decision Letters did not show more than the expected general consistency of approach and did not suffice to show an unwillingness to look at exceptional or unusual situations on their merits as part of examining each appeal on its own merits whilst striving for a general consistency of approach. That is the aim of the policy, rather than to require a detailed analysis of each bus shelter referred to in its own location to see what precise differences arise. It did not appear to me in this appeal or in those Decision Letters that there were any exceptional or unusual circumstances or particular locational aspects being relied on, a refusal to countenance which might have assisted the Claimant.
In substance, the point comes back to the adequacy of reasoning. The decision must deal with the substantial points raised from amenity and consistency aspects. It can do so briefly.
In doing so, the consideration given to any particular circumstances which form a substantial part of an appellant's case should at least briefly appear. The existence or absence of inflexibility as opposed to consistency would then appear. However, the second ground has not been made out.
For the reasons given however this appeal will be allowed and the decision quashed.

THE DEPUTY JUDGE: For the reasons given in the judgment which has been handed down, this appeal is being allowed and the decision will be quashed.

Miss Davies?

MISS DAVIES: This morning I am here in place of Mr Steel QC who argued the case before your Lordship.

There are a couple of very minor typographical errors in the judgment. Would your Lordship like me to take you to those very briefly now?

THE DEPUTY JUDGE: Yes.

MISS DAVIES: My Lord, the first is on page 3 in the third main paragraph down "this need for consistencies". In that first line, my Lord, I think there should be inserted the word "the" before "annex". The next one, my Lord, is on page 8, the last line of the first paragraph. It is just a misspelling of the word --

THE DEPUTY JUDGE: Yes. There is a line I have put through that. It has been photocopied.

MISS DAVIES: The next is in the reference to Save Britain's Heritage which is on page 9. It should be 1 Weekly Law Reports, and it has come out as "I".

THE DEPUTY JUDGE: Thank you very much.

MISS DAVIES: My Lord, on the matter of costs the parties have actually agreed that the claimants' costs should be assessed at £11,600. So I ask your Lordship to make an order that the Secretary of State pay those costs by consent.

THE DEPUTY JUDGE: That is agreed?

MS ROBINSON: It is, my Lord.

THE DEPUTY JUDGE: I so order.

MS ROBINSON: My Lord, I have an application for permission to appeal in this case. Can I briefly outline my reasons? In my understanding that it is the first time the question of a proper approach for advertisement appeals has come before the court, and they are special because of the very restricted considerations which are set out in the legislation, immunity and public safety.

In particular, I suggest this case raises an issue as to the correct approach towards regulation 4.1A and its relationship with the guidance in PPG9 as to the need for consistency in the determination of advertisement appeals. For that reason, this is a proper matter for consideration by the Court of Appeal.

THE DEPUTY JUDGE: Do you wish to say anything, Miss Davies?

MISS DAVIES: My Lord, in my submission your Lordship has applied the general principles of the law to this particular situation, and that does not raise a particular point that is worthy of troubling their Lordships.

THE DEPUTY JUDGE: I am going to refuse leave to appeal, Ms Robinson. Whilst I understand the point you make about the first time these matters have come before the court, the question of the approach to regulation 4.1A and its relationship to the PPG are not matters themselves -- it is really the way in which the advertisement control officer approached those matters in this case. It may be that it is a potentially common approach, but it is a question of looking at that letter rather than an issue of law of any complexity. Accordingly, I am going to refuse permission to appeal.