England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9th May 2003

Friday, 9th May 2003

1. MR JUSTICE COLLINS: The claim before me concerns an advertising hoarding in Coldharbour Lane in Brixton. It embraces numbers 220 to 224 Coldharbour Lane, which was a bomb site.
2. In January 2002, Lambeth wrote to the claimants asserting that they were responsible for a number of hoardings within the Borough, including the one in issue, that they were suspected of being unauthorised hoardings and that they would be removed by the Council if the claimants did not submit sufficient evidence to show that they were authorised.
3. The powers to be used were those given by section 11 of the London Local Authorities Act 1995. This reads, so far as material, under the heading Unauthorised advertisement hoardings et cetera:

"(1) This section applies to a hoarding or other structure used, or designed or adapted for use, for the display of advertisements including a moveable structure, fitments used to support a hoarding or other structure and a structure which itself is an advertisement, other than such a structure for which deemed or express consent has been granted under the Act of 1990 or regulations made thereunder or for which no such consent for such use is required or which was erected before 1st April 1990".

4. Subsection (2) enables the Council to serve a notice on any person appearing to them to be responsible for the erection or maintenance of the hoarding. The notice, by subsection (3) must require the removal of the hoarding within a period of not less than 21 days and must inform the individual required to remove the hoarding that if the notice is not complied with, the Council may enter the land, remove the hoarding and dispose of it and its fitments and recover expenses incurred in so doing.
5. This is a power which enables an authority to remove an asset of an individual without compensation and there is no right of appeal.
6. The Act of 1990, referred to in section 11(1), is the Town and Country Planning Act 1990. This enables regulations to be made controlling the display of advertisements. The relevant section is section 220 and (1) provides:

"Regulations under this Act shall make provisions for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety".

7. Before leaving the Act of 1990, I should refer to section 336, which is the interpretation section, and which interprets "advertisement" as meaning,

"any word, letter, model, sign, placard, board, notice, [awning, blind], device 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 [and 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".

8. As is clear, that is an all embracing definition and would include, for example, any road sign or, as appears from an exclusion within the regulations, even a railway signal.
9. The regulations made under section 220 are the Town and Country Planning (Control of Advertisements) Regulations 1992, S.I. 1992/666. The interpretation, so far as material, refers specifically to illuminated advertisement and defines it as meaning:

"an advertisement which is designed or adapted to be illuminated by artificial lighting, directly or by reflection, and which is so illuminated. That definition may be relevant when considering some of the arguments raised in this case."

10. Regulation 4 provides that the powers under the regulations must be exercised in the interests of amenity and public safety. That reflects what is contained in section 220(1) of the Act.
11. 4(1), so far as material, reads:

"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".

12. I do not in fact have to decide any questions of amenity in the context of this case, for reasons which will become apparent, but those who know this particular junction in Coldharbour Lane would perhaps be surprised to find that there were any features of historic, architectural, cultural or similar interest around the particular site.
13. Regulation 6 deals with deemed consent and provides:

"6(1) Subject to regulations 7 and 8 [which are not material] deemed consent is hereby granted for the display of an advertisement falling within any class specified in Part 1 of Schedule 3, subject --

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

(b) to the standard conditions".

14. Before going to Part 1 of Schedule 3, I should just refer to one other of the regulations and that is Regulation 13, which deals with the powers of the authority where an application for express consent is made and provides that they may grant it, subject to the standard conditions and to such additional conditions as they think fit. Paragraph (2) provides:

"An express consent may be --

(a) for the display of a particular advertisement or advertisements with or without illumination, as the applicant specifies;

(b) for the use of a particular site for the display of advertisements in a specified manner, whether by reference to the number, siting, size or illumination of the advertisements, or the structures intended for such display, or the design or appearance of any such structure, or otherwise."

15. There is provision for an appeal to the Secretary of State against the refusal of an application for consent, and further there is power in the local authority to serve a notice under Regulation 8 requiring discontinuance of a display of advertisement, or the use of a site for such a display, for which deemed consent has been granted if the Council 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.
16. Going then to Part 1 of Schedule 3, the relevant classes for which deemed consent may be given are 13 and 14. The submission made by Mr Holgate on behalf of the claimants is that either or both of those classes mean that the advertisements in question have a deemed consent.
17. Class 13 is headed Sites used for the display of advertisements on 1st April 1974, and reads under the heading Description:

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

Then there are two conditions and limitations. The first reads:

"No substantial increase in the extent or substantial alteration in the manner of the use of the site for the display of advertisements on April 1st 1974 is permitted".

18. 2 is not material. Class 14 is headed 'Advertisements displayed after expiry of express consent', and reads:

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

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

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

19. The conditions and limitations are:

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

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

20. I turn now to consider the history of the advertisements on this site.
21. In 1956, a firm called W R Churchill Limited -- I am not sure whether they were the owners of the site or not, but it matters not -- applied for consent under the then regulations made under the Town and Country Planning Act 1947, being the Town and Country Planning (Control of Advertisement) Regulations 1948, number 1613.
22. The application was for proposed reconstruction of advertisement panels at 224 Coldharbour Lane and new panels on sites at 220 and 222 Coldharbour Lane, SE5.
23. There were standard questions on the application form one of which was whether the advertisements would be illuminated, and the answer given was "no illuminations". The consent was requested, for a period of three years. There was submitted with the application a drawing which indicated the nature of the advertisement hoarding that was to be erected and its dimensions and position on the site. Essentially, what was applied for was a hoarding running parallel to Coldharbour Lane of about 70 feet or so, which at that time was to contain three separate advertisements. In addition, there was, running at right angles against the building at the end of the site furthest from the junction with Loughborough Road, a further advertisement of approximately 20 feet in length.
24. The consent was granted by the Borough of Lambeth, then the relevant authority, on 10th April 1956. So far as material, that consent reads:

"The Borough Council, in pursuance of powers under the above mentioned Regulations [that is the 1948 regulations] delegated to it by the London County Council hereby consents to the advertisement referred to in the under mentioned schedule (in accordance with the plans submitted) for the period and subject to the conditions specified in the under mentioned schedule".

25. The schedule against Address and particulars of advertisement, provides:

"220 to 224 Coldharbour Lane: an advertisement hoarding approximately 90 feet by 15 feet panelled to take four 20 by 10 foot posters erected on a bomb site with a garden layout".

26. In accordance with deposited plans, the period of consent was from 1st May 1956 until 30th April 1959, and there were included the standard conditions, but no additional conditions. The standard conditions have no materiality to the issues which are before me.
27. The 1948 regulations were very similar, so far as material, to their successors, the 1992 regulations. The equivalent of Regulation 13 of the 1992 regulations, which is the one which permits conditions to be imposed, is Regulation 17 of the 1948 regulations.
28. Paragraph 1 of that provides in similar terms to paragraph 1 of Regulation 13 of the 1992 regulations that:

"Consent may be granted subject to the standard conditions and to such additional conditions, if any, as they think fit".

There is a proviso which read.

"Provided that where the application relates to the display in accordance with the provisions of regulation 12 [which gives deemed consent to various specified advertisements] of an advertisement of a specified class, the authority shall not refuse consent or impose a condition more restrictive in effect than any provision of regulation 12 unless they are satisfied that such refusal or condition is required to prevent or remedy a substantial injury to the amenity of the locality or a danger to members of the public".

29. The only significance of that is that in Regulation 12 in one of the classes which it permits as a deemed consent, there is a reference to illuminations. I do not think it is necessary to go into any more detail.
30. Paragraph (2) of Regulation 17, so far as material, reads:

"Without prejudice to the generality of the foregoing paragraph, and subject always to the provisions of Regulation 4 of these Regulations, conditions may be imposed on the grant of consent hereunder --

(a) for regulating the display of advertisements to which the consent relates".

31. Mr Lowe inevitably and correctly accepts that that provision would have enabled the Borough of Lambeth, had it wished to do so, to impose a specific condition that there should be no illumination of the advertisement for which consent was granted.
32. Before the commencement of the hearing, and certainly in the correspondence, Lambeth had contended that the site had not been continually used for display of advertisements since either the termination of the express consent or April 1st 1974, depending on whether Class 13 or Class 14 was being considered. That contention was not pursued at the hearing, and rightly so, since there was overwhelming evidence that the site had indeed been continually used, certainly since 1974 and also since 1959. Indeed, it is surprising that Lambeth thought fit to maintain its contention that it had not been so used for so long. It was clearly misconceived.
33. There was also a suggestion in relation to Class 14 that there had been a change in the configuration of the hoarding and that the advertisement which I have described as being at right angles was not included in the 1956 consent. Measurement of the plans and a reading of the application, coupled with the consent, should have made it clear that indeed it was included and that that was a thoroughly bad point. It is again somewhat surprising that the badness of that point had not been identified until such a late stage.
34. The only question, therefore, so far as classes 13 and 14 are concerned, is whether the addition in 1989 of illumination by means of what have been described as, "bars" along the top of the hoarding shining onto the advertisements, take them outside the description in 13 or 14. However, there are other matters relating to the manner in which Lambeth have acted which have been raised and with which I must deal.
35. Section 11(1) requires that there be no express or deemed consent. Whether there is such consent is a matter of fact which must be established before any action can be taken under section 11. As I have already said, there is no right of appeal and the action under section 11 will result in the compulsory removal without compensation of someone's property and an obvious loss of income.
36. Therefore, and consistently with the approach of the House of Lords in Khawaja v Secretary of State for the Home Department [1984] AC 74, there being a need to establish a precedent fact, the court is entitled, if there is a material dispute, to resolve it for itself. This seems to me to be all the more important in a case such as this where there is no appeal provided for.
37. Normally, this court will be reluctant to resolve factual issues, but there is in my view nowadays no real difficulty since directions can be given under the relevant provisions of the CPR in an appropriate case that it proceed as if a writ action. This will enable full discovery in the normal way and the hearing of witnesses, if that is appropriate, and the normal provisions for resolution of issues of fact.
38. In this particular case, for reasons which will become apparent, there is no factual issue which I am asked to resolve. The question is whether, on accepted facts, there was a deemed consent and that depends on applying those accepted facts to the provisions of Class 13 and 14 of the regulations.
39. It was suggested -- apparently a suggestion which may have come from one of my brethren at some earlier stage in these proceedings -- that if there were a factual issue, a claim for trespass could be made. What I understand was being suggested was that the claimants could have flagged up that they contended that there was indeed a deemed consent, waited until Lambeth was about to descend and remove and then apply for an injunction claiming that it would be a trespass for them to do so, and the matter could be dealt with through, I suppose, either the County Court or the High Court in that way.
40. That seems to me to be a thoroughly cumbersome and unnecessary way of dealing with the matter. It runs contrary to the pertinent observations of Saville LJ in British Steel Limited v Commissioners of Customs and Excise, a decision of the Court of Appeal of 20th December 1996, QB ENI 95/1741/E.
41. At page 16 of the transcript with which I have been provided, Saville LJ in the third last paragraph of his judgment says this:

"This is only the most recent such case [I interpolate 'such case' being an argument as to whether claim was properly brought as judicial review, or as a private law action], for over the last decade or so there has been a stream of litigation on this subject, much of it proceeding to the House of Lords. The cases raise and depend upon the most sophisticated arguments, such as the distinction and difference between what is described as 'public' as opposed to 'private' law, whether rights are of a 'private' or 'public' nature, whether 'private' rights depend upon the exercise of public obligations and so on; as well as seeking to decide, in the context of legislation which does not make the position clear, whether or not Parliament did or did not intend to limit or exclude rights that might otherwise exist under common law. The cost of this litigation, borne privately or through taxation, must be immense, with often the lawyers the only people to gain.

Such litigation brings the law and our legal system into disrepute; and to my mind correctly so. It reinforces the view held by the ordinary person that the law and our legal systems are slow, expensive and unsatisfactory. In this day and age it is surely possible to devise procedures which avoid this form of satellite litigation, while safeguarding both the private rights of individuals and companies and the position and responsibilities of public authorities".

42. It seems to me that where there is a dispute as to the ability of a London Borough to make use of section 11, the appropriate course would be for an application for judicial review to be made, and if it becomes apparent that there is indeed the need to resolve an issue of fact -- for example, a need to consider whether there has been continual use where there is a dispute about it, an application can be made to the court and the court can decide whether there is a need for the matter to be dealt with as if it were a writ action and for that issue to be the subject of live evidence, or whether in the circumstances the matter can be dealt with without such a need.
43. But the whole of what is in issue can then be dealt with in one and the same proceedings. The powers under the relevant CPR are wider than perhaps they used to be under the Old order 53 in this regard and the court has full power to ensure that the appropriate means of dealing with each issue can be identified.
44. Going back to the history, Lambeth, it appears, is waging something of a campaign against a considerable number of advertisement hoardings in the Borough. In January 2002, the Council wrote a letter to the claimants, which is headed for some reason "without prejudice: Re: Advertisements in the London Borough of Lambeth". It stated that the planning authority had reason to believe that the advertisement hoardings and displays listed below in Lambeth had been erected by the claimants, and indicated that the authority would be taking a series of measures, including criminal prosecution, to ensure the removal of any or all of the advertisements shown to be unauthorised or which did not benefit from any type of express or deemed consent.
45. It required that sufficient evidence be submitted to the planning authority within 28 days to show that each of the advertisements listed below had been continually displayed since 1st April 1974, or benefited from an express or deemed consent.
46. If there was no response, or the response was unsatisfactory, then the advertisement would have to be removed within 28 days, and if it was not, immediate action would be taken.
47. There was a list of what was described as a list of some of the advertisement displays bearing the claimant's identification in the Borough. There were some 50 or so listed. One of them was the one with which we are concerned. Following that there was correspondence with the Council. On 13th August, Lambeth wrote to the claimants stating that the Planning Enforcement Team now intended to seek the removal of all illegal advertisement displays and hoardings and requesting them to seek voluntary removal of all illegal hoardings for which they were responsible, and if they did not, there would be section 11 notices. There were then threats and indications as to what Lambeth would do and a demand for cooperation.
48. That letter was replied to towards the end of the month. I do not think it necessary to go into the details of the reply. Perhaps they can be guessed at.
49. Then on 4th October, Lambeth wrote another letter and in it they said this:

"The Planning Authority has reason to believe that the following advertisement hoardings have been erected without the relevant advertisement consent and do not benefit from any type of deemed consent and to this effect we are about to serve notice requiring their removal. The advertisement hoardings are considered to be contrary to our approved development plan policies and would therefore be unlikely to receive retrospective advertisement consent".

50. Then there is again a request for voluntary removal and an indication that if the claimants believed that they benefited from either express or deemed consent, they must immediately contact the author and provide all the evidence they may have to substantiate any assertions such as decision notices with approved plans, contemporaneous documents, verifiably dated photographs, or affidavits:

"Affidavits should also state that the person has no interest, pecuniary or otherwise in either the property, the company or the advertisement hoarding) and all other available evidence".

It goes on:

"The planning authority will not normally accept assertions which claims deemed or express consent without sufficient evidence to substantiate those assertions. I should also point out that the burden of proof would rest with the person(s) responsible for the erection or maintenance of the advertisement hoarding to show that it benefits from consent".

There were eight particular hoardings referred to in that letter, one of which was the one in question.

51. On the 15th, the claimants replied in relation to this site. The author said that it surprised him that the Council could not trace a consent granted by Lambeth -- that is the 1956 consent -- and attached a copy of it.
52. That elicited a fax on 17th October from the Planning Enforcement Officer, in which he again referred to affidavits saying:

"Any affidavits submitted as part of evidence of consent is a matter for the LPA to scrutinise and consider. In order for any affidavits to be accepted sincerely in the first instance as such evidence, they would be required to fall within the parameters detailed in my letter of 4th October".

It goes on:

"You do not state which law, if any, you are referring to".

53. That was in answer to a comment by the claimants that the demand for affidavits had no basis in law. That was, of course, a correct comment. The reference to the requirement of affidavits was wholly inappropriate and should never have been made.
54. Then the fax of 17th October deals with 220 to 224 Coldharbour Lane in these terms:

"It can be clearly seen that the advertisement consent which you kindly attached expired on 30th April 1959. Please provide sufficient evidence to show that the current displays benefit from deemed or express consent".

55. The assertion made on 22nd October was that the consent had indeed expired, but as the official from Lambeth should be aware, it now enjoyed a Class 14 consent under Schedule 3.
56. The next document is a fax from Lambeth on 31st October. It goes back to the affidavit point and says:

"Regarding affidavits: the LPA shall consider any affidavit submitted as evidence of deemed consent fairly, reasonably and objectively. In that respect anyone who intends to submit affidavits of evidence of deemed consent, should ensure that such affidavits are, amongst other things, fair and reasonable, clear and unambiguous, factual and descriptive and of course independent. All affidavits submitted shall be considered and scrutinised thoroughly, however I would comment that all other available evidence should be submitted also in order to satisfy the LPA beyond reasonable doubt that the advertisement display/hoarding benefits from consent, and in the event where deemed consent is claimed sufficient evidence to show that it satisfies the description, limitations and conditions of that class or consent".

57. Some eight days later, on 8th November, without waiting for any further evidence, Lambeth served the section 11 notices. In fact, six notices were served, but the letter serving them did contain a paragraph indicating that, as a matter of urgency, the claimants could contact the Enforcement Officer in writing stating what authority they relied on and producing evidence of how they satisfied the deemed consent.
58. They indicated that the LPA would not normally accept assertions in the absence of convincing supporting documentary evidence and it was the responsibility of the claimants to prove that the advertisements were lawful. Then it purported to caution them in the last paragraph, indicating that the LPA was now considering whether or not to prosecute for the offence of displaying an advertisement without consent, and continued:

"I would be grateful to receive any comment that you may wish to make in this respect, especially if you did not know it was displayed, it was displayed without your consent or you believe that you have authority to display the advertisements. I do, however, advise you to take legal advice before contacting me because, although you do not have to say anything, it may harm your defence if you do not mention now something which you later rely on in court. Anything you do say may be given in evidence".

59. I suppose one could think of a more inappropriate way of dealing with the issue than that adopted by Lambeth through its Enforcement Officer. Mr Lowe accepted, as he had to, that there had been a slightly overzealous attempt to enforce the provisions of section 11. That is a very good example of litotes.
60. It seems to me, as I say, that Lambeth got virtually everything one could think of wrong. There is no power to demand affidavits. It was quite wrong and inappropriate to suggest that the statements from those involved with the company effectively would not be considered because they were not independent. The suggestion that there was a burden, let alone a requirement to prove beyond reasonable doubt, that there was no deemed consent is clearly wrong. Questions of burden of proof do not arise in this context.
61. What the authority has to do is to consider all the evidence before it, and that includes the material that it has on the register that it is required by the regulations to keep of any applications for consent and any matters peculiarly within their own knowledge in relation to this site, together with any material put before them by the claimant, and having considered that material, they have to decide on the balance of probabilities whether the evidence means that the factual situation required by section 11(1), namely that there is no express or deemed consent, exists.
62. As I say, to suggest there is any burden in the way they did on the claimants is clearly wrong and the caution, or purported caution, at the end of the last letter frankly beggars belief. It is a perfect example of how not to behave by a local authority. What Lambeth could and should have done in general terms was to consider the material that it had in its own records and to indicate, if that was the case, that it appeared that no express or deemed consent existed, and to state that the Borough intended to take action.
63. The claimants should then have been given a reasonable time to produce evidence to show that consent existed. It was open to Lambeth to have notified the claimants that little or no weight would be attached to mere assertion and that it would be of assistance if any documentation which established the continuity and the existence of these hoardings over the relevant period existed. As I say, Lambeth should have considered all that material and decided whether the situation was such as entitled them to serve a notice under section 11.
64. There have been produced before me, somewhat late in the day, what are described as Procedure Notes for section 11 notices. I do not need to set them out in detail. Suffice it to say that if the procedure set out in these notes had been followed, there would almost certainly have been no reason to complain about the manner in which Lambeth had dealt with this matter. I do not know why the procedure set out was not followed. All I can do is to express the hope that nothing such as happened in this case will ever happen again.
65. However, although, very properly, when the proceedings were lodged, reliance was placed upon these defects in the procedure, as things have turned out, the only issues now depend upon the construction of the relevant Classes 14 and 13. I put them in that order because it is convenient in the circumstances to deal with Class 14 first.
66. The first step is to construe the consent which was actually granted. A consent such as this runs with the land and therefore, in accordance with authority which deals with planning permissions, unless the consent contains an ambiguity on its face, generally it is only permissible to look at the consent itself and any document expressly referred to in it in order to construe its precise terms. There is ample authority to that effect. The one in the bundle before me is Slough Borough Council v Secretary of State for the Environment [1995] JPL 1128. That proposition is so well known that it is not necessary for me to refer specifically to any parts of it.
67. It is therefore common ground that all that can be looked at here is the consent itself, together with the plans that are specifically incorporated into that consent. What cannot be looked at in construing it is the application -- not that in fact the application is particularly helpful because, although it indicates that illumination was not being applied for, it does not follow that the grant was necessarily restrictive of illumination in the future.
68. The reason why it is said that the terms of the consent have to be considered is because of the condition in 14(2). It is accepted that there was no condition to the contrary imposed on the consent and 14(2)(b) does not apply since renewal of consent was not applied for, let alone refused. So the question is whether the consent and the plans mean that the limitation contained in 14(2) bites so that reliance cannot not be placed on Class 14. The reason why it bites is because of the words, so Mr Lowe submits, "used for the purpose" contained in 14(2). I should, I think for clarity, reread 14(2). It provides:

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

69. The submission made is that "for the purpose" means, and must mean, "for the purpose permitted by the express consent", and the express consent does not extend to illumination. The reason why, it is submitted, that it can be shown that it does not so extend is because, when one looks at the plans, there is nothing on them which indicates a possibility of illumination; certainly, there is nothing which permits of the addition of the bars which have now been erected. They are an addition to the plans. They were not covered by the consent and therefore the site has not since 1989, when the bars were erected, been used for the purpose of the consent.
70. Mr Holgate prays in aid the definition of "advertisement" in the 1990 Act, pointing out that it includes the words "illuminated or not", and thus, any reference to advertisement in the regulations must be read as including an advertisement which is illuminated, as well as an advertisement which is not. That is a meaning which should be attached to the consent.
71. He relies upon observations of Lord Lowry in Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357. Lord Lowry's observations are at page 365. The case itself concerned a caravan and the issue was whether "caravan" meant what perhaps everyone would think a caravan meant, or was to be construed in accordance with the extended meaning of "caravan" within the 1960 Act.
72. Lord Lowry said this:

"My Lords, I have to say that I regard the Council's proposition as quite untenable: if Parliament in a statutory enactment defines its terms (whether by enlarging or by restricting the order meaning of the word or expression) it must intend that, in the absence of a clear indication to the contrary, those terms as defined shall govern what is proposed, authorised or done under or by reference to that enactment. If after D-Day, there being no relevant planning history, an owner has submitted an application to use his land 'as an caravan site for 50 caravans' and, the planning authority having granted permission without imposing any restriction on the type of caravan allowed (I am not for the moment thinking of conditions as to colour, design or layout), stations on the site something which is a caravan as defined by the Act of 1960, although not a caravan in the ordinary sense, could the authority then serve a good enforcement notice requiring the landowners to remove the unauthorised structure from the site? I scarcely think so, yet that would be the consequence of accepting the Council's argument. It would also seem to follow from this reasoning that, in order to be able to bring statutory caravans onto the site, a developer must seek express permission for "caravans as defined in the Order under which this application is made'".

73. Mr Holgate submits that the plans cannot help, since illumination could have been provided without any change -- certainly any substantial change -- to the layout and structure, as indicated on the plans; for example, some form of internal lighting. Accordingly, he submits, it cannot be said that the purpose was clearly -- and I use the word "clearly" because that reflects what Lord Lowry said -- limited to unilluminated advertisements. Accordingly, the existence of the bars cannot be regarded as a material matter. The fact is, he submits, that the consent, on its true construction, bearing in mind the definition of "advertisement", which was the same so far as material in the 1947 Act -- whether illuminated or not, there was a continual use for the purpose of displaying advertisements for which the express consent had been granted.
74. In my view, that argument is correct. The Borough could easily in 1956 have included a condition against illumination. It did not do so. At any time since 1989, it would have been open to the Council to have served a notice under what is now Regulation 8 of the 1992 Regulations -- it was the same Regulation in 1948 -- requiring discontinuance on the basis that there was a substantial detriment to amenity or a danger created by the addition of illumination.

In fact, nothing was done for 13 years. The advertisement has stayed there. One must assume that there has been no concern by anyone. I certainly have no evidence of any such concern about the presence of that advertisement over those 13 years in an illuminated form. Of course, it is not necessary for the Council to take any action, even if people complain to it, but the inertia of the Council over 13 years is at least a factor which suggests that there has been no real concern about the illumination.

75. That being so, it is strictly unnecessary for me to consider whether, in addition or in the alternative, there is a deemed consent under Class 13. However, I have heard argument about it and I should give my views.
76. The question in relation to class 13 is whether there has been a substantial alteration in the manner of the use of the site for the display of advertisements because of the illumination in 1989. Mr Lowe submits essentially that any illumination is a substantial alteration. It is not necessary to assess whether there has been any site-specific substantial alteration. As a general proposition, illumination must be a substantial alteration in the manner of use of the site.
77. There is no question but that illumination is capable of amounting to a substantial alteration in the manner of the use of the site. Indeed, it may be that, as a general rule, it is likely that illumination will have that effect. An obvious example is an advertisement in a residential area where illumination may affect the ability to sleep of those who live nearby, by light being reflected; or flashing lights, if that is the nature of the illumination, may well be said to represent a substantial alteration in the manner.
78. It is to be noted that the Department of the Environment, Transport and the Regions issued a document in 1999 headed 'Modernising Planning Outdoor Advertisement Control Consultation Paper', and in relation to Class 13, it noted that confusion had arisen as to whether the deemed consent applied to the advertisement or the site, which is not altogether surprising from the language of the class. It was said that it was going to change the title of Class 13 to Advertisements Displayed on the Same Site for the Past Ten Years, and to add to the description:

"Reference in this Class to the display of advertisements shall be construed as reference also to the use of the site".

Whether that removes the confusion is perhaps for others to determine, if ever such a provision is enacted.

In paragraph 4.25.7, it continues:

"The facts of a particular site will always need to be considered ..."

Pausing there, that does not accord with the approach that has been submitted to me as the correct approach on behalf of Lambeth.

79. Going back to 4.25.7, it continues:

"... but, as a general proposition, the replacement of a static non-illuminated board lawfully displayed by virtue of Class 13 with a non-illuminated 'Primavision' or 'Ultravision' (trionic advertisements) display, is capable of being within the scope of the deemed consent provisions provided that conditions (1) and (2) are met. The Department's reason for taking this view is that regular change of advertisements displayed by these units is directly comparable to the frequent change of posters displayed on static boards: so there is no material change. The introduction of illumination, however, will usually mean that the new display cannot benefit from Clause 13".

Then 4.25.9:

"Proposed action. For the avoidance of any future doubt the Department proposes to include a condition making clear that introduction of illumination represents a material change thus excluding any such proposed display from Class 13".

80. It seems to me that, as things stand, it is necessary to consider in relation to any particular site whether the provision of illumination does amount to a substantial alteration in the manner of the use of the site. It may or it may not, and that will depend upon the effect of the illumination in any particular case.
81. It is to be remembered that the approach under the Act, and under the Regulations, is that powers should be exercised only in the interests of amenity and public safety. If there is a deemed consent to an advertisement, it seems to me that it is relevant to consider, as things stand, whether the illumination does have an effect on amenity or does create a danger. If it does not in any way, it is difficult to see how it could properly be regarded within the context of the approach to construction that should be adopted of these Regulations as a substantial alteration.
82. It is pertinent in my judgment to have regard to the purpose behind the need for control, which is to further the interests of amenity and to avoid any danger. It may well be thought by Lambeth, and it may be perfectly reasonable so to believe, that the advertisements, even as they are, are contrary to amenity. That is a matter which may have to be considered in the future. But as the matter stands under the Regulations, there is nothing positive that could be done unless it can be established within the terms of Regulation 8 that there is a substantial effect on amenity, or a danger resulting from this. It would be right in those circumstances to consider whether the illumination and creates any additional adverse effect.
83. It is also clearly necessary, applying the wording of 13(1), that focus is on the use of the site, rather than on the hoarding itself. It is an alteration in the manner of the use of the site, not an alteration in the configuration or the means by which the hoarding is illuminated, that per se falls within 13(1). It is only if that change or that illumination amounts to a substantial alteration in the manner of the use of the site that condition 13(1) bites.
84. I have been referred to Kingsley v Hammersmith and Fulham, 62 PCR 589. That was a case where it was argued that in deciding whether to prosecute, an authority had to have regard to Regulation 4, and the court decided that that argument was not correct. If there was a breach, the authority was entitled to prosecute without regard to whether there was or was not a detriment to amenity.
85. The same would apply in my view to the exercise of the discretion in considering whether to use section 11(1). If there was no deemed consent, it is open to the authority to make use of 11(1). That is subject to one matter to which I will come in a moment. But regard should in my view be had to Regulation 4 in construing the Regulations themselves, and indeed regard should be had more perhaps to section 220(1); that is the context in which the Regulations and action under them is regarded. It is necessary in my view to have regard to that in construing the Regulations themselves and that includes the construction of Class 13.
86. The matter therefore that would have to be considered in relation to Class 13 is whether, as a matter of fact, there could be said to be a substantial alteration in the circumstances prevailing around and in relation to this site. That exercise has not been conducted and I am not able on the material before me to say positively one way or the other whether it would be correct to conclude as a matter of fact that there was or was not a substantial alteration. As it is, all I can say is that, on the way that the Council have considered it, they were wrong to conclude that there was such a substantial alteration.
87. A further point was raised in the course of argument. Assuming that the illumination did create a substantial alteration, was it possible for the claimants to remove the illumination and so continue under Class 13 the use of the site with the deemed consent, or did the deemed consent lapse once the illumination was installed?
88. It is to be noted that section 11 is all or nothing. There is no power to require the removal of an offending extra. If Mr Lowe's submission is right, once something is done, which in fact creates a breach of the condition in 13(1), the deemed consent disappears and it is not possible to repair the situation. That is indeed a draconian provision.
89. True it is, as Mr Lowe submits, that there is the ability to make a fresh application. Incidentally, there appears to be nothing to prevent an authority from removing the hoarding under section 11, even though an application for consent is being made. There is, of course, a right of appeal against a refusal, but that takes time and money.
90. The question therefore is whether, on its true construction, the change, if it be a substantial alteration, means that the deemed consent comes to an end.
91. Mr Holgate submits that what is being done in order to achieve that is to write the condition into the description. One must look at the description first and that simply refers to an advertisement displayed on site which was used for the display of advertisements without express consent on 1st April 1974 and has been so used continually since that date.
92. The fact is that the site is one which has been continually used for the display of an advertisement since April 1st 1974. The breach of the condition may enable action to be taken, but if the condition ceases to be breached, there is no reason why the deemed consent should not continue to run. That, he submits, is to provide a fair construction of Class 13 because it means that an offending party can put the position back by removing what offended.
93. One must bear in mind that a person responsible for an advertisement hoarding may well reasonably believe that he is not going outside his deemed consent by, for example, introducing a form of illumination. The Department itself, in the consultation paper to which I have referred, recognised that there was a doubt about the matter and I have no reason to believe that the claimants have acted otherwise than reasonably. Indeed as, we know, no one has suggested that there were doing anything wrong for some 13 years before Lambeth suddenly wrote to them telling them that they were. In those circumstances, I have no hesitation in accepting the construction that Mr Holgate places upon this. That being so, it seems to me that, when considering whether they should exercise their discretion to take action under section 11, the authority should first require the removal of the offending matter -- in this case, the illumination -- and certainly should have regard in any event, in considering whether to use section 11, to the fact that it would be possible to remove the illumination, or whatever the offending matter was, and thus revive the deemed consent. I say that because, as I have indicated, section 11 is an all or nothing and will mean the removal in its entirety of the advertisement hoarding.
94. The only other matter which I need mention, although I reach no decision upon it, is the contention that there has not been a lawful delegation by Lambeth in the decision to issue the enforcement notice.
95. I, as I say, need make no final decision on that. It is a matter that arose very late in the day and I am conscious that all material relevant to it is not necessarily before me. Mr Holgate wishes to leave that open in case this matter goes further. He is entitled to that and I need say no more about it.
96. In all the circumstances, I take the view that this application must succeed and the section 11 notices must be quashed.
97. MR HOLGATE: My Lord, I am grateful. That is the order I do in fact ask for, and that was what we sought at page 3 of the claim form. There were of course three section 10 notices as well, but their status I suspect must be parasitic.
98. MR JUSTICE COLLINS: Yes.
99. MR HOLGATE: I suspect there is no need.
100. MR JUSTICE COLLINS: I would not have thought there was any need as to any separate order. I will just say the notices. They stand or fall with the section 11, do they not?
101. Mr Lowe, there is no issue about that, is there?
102. MR LOWE: There is no issue, no.
103. MR HOLGATE: My Lord, I think when the papers were drafted originally by my learned friend Mr Langham at short notice, in order to seek injunctive relief -- I do not think we had got as far as precedent fact in our thinking, but given the judgment of the court, I would suggest it would be appropriate for a declaration to be drafted which could be agreed between the parties to give effect to your Lordship's decision.
104. MR JUSTICE COLLINS: Is that necessary? It is in the judgment.
105. MR HOLGATE: The judgment otherwise speaks for itself.
106. MR JUSTICE COLLINS: I would have thought so.
107. MR HOLGATE: If everyone is content to proceed on that basis, I am perfectly happy.
108. The only other matter, my Lord, is costs, and I ask for costs to include costs which were reserved first of all by Davis J on 10th January, and also secondly by McCombe J on 28th January.
109. MR JUSTICE COLLINS: Those were in relation to the interlocutory applications?
110. MR HOLGATE: Exactly, my Lord.
111. MR LOWE: My Lord, in the circumstances, I do not think I can resist those applications.
112. MR JUSTICE COLLINS: I do not think you can, Mr Lowe.
113. Presumably to be the subject of a detailed assessment, if not agreed?
114. MR LOWE: We have agreed that it should be assessed, my Lord.
115. MR JUSTICE COLLINS: Obviously, you are always at liberty to agree costs, if you can.
116. MR LOWE: My Lord, there is one other matter.
117. MR JUSTICE COLLINS: Yes.
118. MR LOWE: My Lord, your Lordship's decision on Class 13 is an important one because, which deals with a number of interesting aspects of that Class which have not been the subject of any decision before.
119. MR JUSTICE COLLINS: Yes.
120. MR LOWE: My clients have not taken any view, of course, on the matter but, given the issue of law and its complexity and importance to those in the world of advertising, I am instructed to ask your Lordship for permission to appeal.
121. MR JUSTICE COLLINS: Yes. Are you limiting it to the Class 13?
122. MR LOWE: My Lord, I am asking for it generally, because there is that issue of construction on Class 14, but my primary request is on Class 13.
123. MR JUSTICE COLLINS: Yes. The trouble is that you lost on Class 14, which is the primary loss, and I really do not think you have any good reason to appeal that. That is specific to the facts of this case and the consent that was issued.
124. MR LOWE: I appreciate that.
125. MR JUSTICE COLLINS: 13 may be an interesting point, but what I have said on it is arguably obiter anyway, and I do not think it is really appropriate to grant leave to appeal on matters that are really obiter, even though I take your point.
126. I think if 13 had been determinative, maybe, but equally, it is not determinative anyway because I have not said that 13 may not be applicable. It depends upon the facts, which have not been gone into, because of the way Lambeth believed -- and reasonably believed -- the law was.
127. MR LOWE: I am grateful, your Lordship.
128. MR JUSTICE COLLINS: I think, for all those reasons, no.
129. I you assume you did not want them to have leave to appeal?
130. MR HOLGATE: No.
131. MR JUSTICE COLLINS: Thank you.
132. Reasons for refusing: what I have said is the only point suggested to be worthy of leave to appeal is the construction of Class 13, but the claimants won on 14 and what I said on 13 was arguably obiter. Leave is therefore not justified.
133. MR LOWE: I am grateful.
134. MR JUSTICE COLLINS: So you know what I have said.
135. Thank you for your help, both of you.
136. Incidentally, I did not raise it in the course of the hearing, but I am slightly worried also to note the press release and the indication in January of this year that the advertisements were going to be obliterated with notices saying "these are not authorised advertisements".
137. As a matter of fact, there were such notices placed on these advertisements. They did not obliterate, because they were fairly small, but they were placed on them. I happen to know that because I saw them. I cannot remember precisely when, but it should not have happened when it was known that these proceedings were being instituted.
138. MR LOWE: My Lord, I shall make sure --
139. MR JUSTICE COLLINS: Perhaps somebody should be notified that that was another error.
140. MR LOWE: -- somebody will be notified.