QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE GOLDRING
|MAYOR AND BURGESSES OF LONDON BOROUGH OF BARKING AND DAGENHAM||(CLAIMANT)|
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)
The DEFENDANT did not appear and was not represented
Crown Copyright ©
Monday, 16th June 2003
"that on 12 . . . February 2002 at Heathway Shopping Parade you did display an advertisement concerning Secrets Night Club in contravention of the Town and Country Planning (Control of Advertisements) Regulations 1992 contrary to section 224(3) of the Town and Country Planning Act 1990".
"S 10, London Local Authorities Act 1995
S 224 Town and Country Planning Act 1990
Re: Fly Posting
A recent investigation has shown that your company, or agent, has been illegally erecting posters and advertisements on street furniture throughout this Borough. These posters advertise forthcoming attraction and entertainment at the above premises.
It is an offence to erect or display such posters and advertisement, publicising goods, a trade or business without permission or authority, in contravention of the regulations.
Furthermore, such actions are totally contrary to the values currently being promoted by this Council of a 'Cleaner Greener Safer Environment'. If these values are to be achieved there must be strict control over this type of activity, commonly known as 'fly posting'.
As the controlling body in this manner of advertising, it is your responsibility to direct how and where such posters or advertisements should be displayed. I have enclosed photographs of your posts currently displayed at one cross roads within the Borough at, Heathway junction with Oxlow Lane.
This Council requires the removal of these, and any other posters displayed within the Borough of Barking and Dagenham, within 21 days of the date of this letter otherwise they will be removed by the Council and you may be liable for the costs involved.
If they are not removed, or further posters are illegally erected within this Borough, we will have no alternative but to instigate formal proceedings under the above legislation. A conviction for this offence renders you liable to a fine".
"Our client instructs us and we understand that it is common practice, for nightclubs such as Secrets to hire out their venue on specific evenings to a promoter. It is the promoter who is then responsible for the publicity for the particular event that he or she is promoting.
The promotion or hiring agreement between our client and the promoter specifically prohibits --
1. Bill postering on private property.
2. Flying with intent to cause nuisance or littering of public or private property.
Our client instructs us that he has encountered difficulties with promoters in the past . . .
On behalf of our client we enclose herewith the relevant invoices relating to the alleged offences occurring on 8th, 12th and 26th of February and 4th, 11th of March 2002, detailing the relevant promoters.
The posters that offend were put up without the knowledge or consent of [the respondent]. He was not the person spoken to on the telephone referred to in Mr Clarke's statement. However, whoever it was would simply have been echoing advice given to the club by the similar Local Authority Officer in Havering.
Our client cannot therefore be said to be in anyway 'responsible' for the posters referred to in the statement of David Clarke, within the meaning of the Town and Country Planning Act 1990 . . . "
"In all the circumstances, we suggest that the summons' [sic] served upon our client alleging contraventions of Section 224(3) of the Town and Country Planning Act 1990 should be issued against those names detailed on the enclosed invoices, and ask that you revert to the London Borough of Barking and Dagenham for instructions to withdraw the summonses . . . and re-issue against the relevant promoters".
"Rules. Secrets Nightclub Does Not Permit The Following
1. Bill postering on private property.
2. Flying with intent to cause a nuisance or littering of public or private property".
1. There was no evidence that the respondent knew of the telephone call of 30th November 2001;
2. There was no evidence that the respondent knew of the letter of 18th February 2002; and
3. There was no evidence that the respondent knew of the problem of posters before proceedings were issued on 9th May 2002.
1. There was _prima facie_ evidence that the respondent did know of the posters;
2. In any event, it was not necessary under section 224 for the prosecution to prove knowledge. He was by that section "deemed" to have such knowledge.
"We were of the opinion that:
i) It had to be shown [by the appellant] under s 224(3) of the Town and Country Planning Act 1990 that ['the respondent'] had either the knowledge or given his consent for the posters to be put up.
ii) We believe that it cannot be shown that [the respondent] had knowledge of either the telephone call on 30th November 2001 or the letter sent on 18th February 2002, as it was not directed to his home address, neither to any of the other Directors' home addresses.
iii) The Defence had put forward in cross-examination invoices from Secrets Night Club which suggested a clear policy not to allow fly posting, and had provided evidence of individual promoters, that should have been followed up by [the appellant].
iv) Once details of the summonses had come to the attention of [the respondent], he had taken steps to have the posters removed.
v) The local authority should have advised the Directors of the problem directly of fly posting, once they became aware of the home addresses.
vi) The Magistrates dismissed the informations against the Defendant for the aforementioned reasons".
"The question for the opinion of the High Court is whether on the facts of the case we were correct in finding there was no case to answer on the basis that the Prosecution had not adduced sufficient evidence to satisfy us that the posters had been displayed with the knowledge or consent of [the respondent]".
"Without prejudice to the generality of subsection (3), a person shall be deemed to display an advertisement for the purposes of that subsection if --
(a) he is the owner or occupier of the land on which the advertisement is displayed [not material for present purposes]; or
(b) the advertisement gives publicity to his goods, trade, business or other concerns".
"A person shall not be guilty of an offence under subsection (3) by reason only --
. . .
(b) of his goods, trade, business or other concerns being given publicity by the advertisement.
If he proves that it was displayed without his knowledge or consent".