QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MAIDEN OUTDOOR ADVERTISING LIMITED||(CLAIMANT)|
|LAMBETH LONDON BOROUGH COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M LOWE QC AND MR K SHERRETT appeared on behalf of the DEFENDANT
Crown Copyright ©
Friday, 9th May 2003
"(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".
"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".
"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".
"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."
"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".
"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".
"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."
"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".
"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".
"(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".
"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".
"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".
"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".
"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".
"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".
"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".
"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.
"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".
"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".
"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".
"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".
"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".
"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'".
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.
"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.
"... 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".
"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".