QUEEN'S BENCH DIVISION
B e f o r e :
|JC DECAUX LTD||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(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 J MAURICI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT
Tuesday, 11 February 2003
Crown Copyright ©
"3. Dealing firstly with the policy objection [conflict with Policy BD12] it is acknowledged that policies or guidelines contained in an operative development plan can be a factor to be taken into account in the assessment and determination of applications for express consent and any associated appeals. However such policies or guidelines cannot be a decisive factor in the determination of applications and appeals since it is a requirement of the Regulations that control over advertisements be exercised in the interests of amenity and public safety; the requirement in section 54A of the Town and Country Planning Act 1990 to determine applications for planning permission in accordance with the development plan does not apply to the advertisement control regime. This does not of course mean that no weight is to be given to policies or guidelines contained in a development plan, but it does mean that they are neither the starting point nor the final decisive consideration. Furthermore the weight to be given to any particular development plan policy or guideline will very much depend on whether a quoted policy or guideline is over-prescriptive. Where a policy or guideline is over-prescriptive and does not follow the thrust of advice set out in Central Government guidance and in particular PPG19, then it is to be expected that the policy or guideline will normally command lesser weight as a material factor to be taken into account.
4. In the case of the quoted Policy BD12 it is considered that its fundamental thrust is unduly prescriptive by stating that 'advertisement hoardings may be unacceptable around building sites or where they screen unsightly areas. Elsewhere they will generally be discouraged's...' ... there is nothing in Central Government guidance to suggest that to be acceptable an outdoor advertisement panel must be restricted to being displayed in such settings. ...
5. The appellants agree that the proper way to deal with an application for express consent is to assess the particular proposal at the particular location proposed, in the interests of amenity, and where applicable, public safety."
"... it is fully acknowledged that the advertisement control regime operates in respect of particular proposals at particular locations and it will be rare to find an exact mirror image situation."
The claimant's representations also dealt with the history of advertisement display on the appeals site.
"5.2 The proposed hoardings will be a large and visually obtrusive feature in the streetscene, particularly as they will be located in a prominent position on a well used route into and out of Leeds. Due to this prominence they will be seen from passing pedestrian and vehicular traffic along Whitehall Road.
5.3 It is considered that the display of the hoardings by virtue of their scale, mass, illumination, elevated position and siting in this very prominent position could, if allowed on appeal, represent an overdominant and intrusive feature to the detriment of the wider visual amenity of the streetscene and the surrounding area contrary to Policy BD12 of the adopted Unitary Development Plan."
"The Council refers to Policy BD12 of the Unitary Development Plan. This considers advertisement hoardings to be acceptable around building sites or where they screen unsightly areas. Elsewhere the policy aims to discourage them, with applications being assessed on their visual impact upon the surrounding area. This policy might be considered to be over-prescriptive but, in any case, the Regulations require decisions to be made only in the interests of amenity and public safety, and any other material considerations. Thus, whilst Policy BD12 is a material consideration, and can be afforded some weight, it cannot be decisive in itself. Planning Policy Guidance Note 19 'Outdoor Advertisement Control' (PPG19) is also a significant material consideration and I have afforded it considerable weight in relation to both of these appeals."
When dealing with matters of clarification and background information, the Inspector said in paragraph 5.
"During the course of the hearing I visited the other advertisement sites referred to in the appellant's appendices. The points raised by the appellants in relation to these other sites are appropriate material considerations and relate to the advice in PPG19. Amongst other things this states that policy statements 'should give clear guidance to prospective advertisers on the likely acceptability of their proposals and provide a basis for rational and consistent decisions' and that it is 'important for the LPA to be consistent in assessing visual impact in similar surroundings'. Thus, whilst I have assessed these cases on their own merits, I have taken into account the detailed submissions of the appellants in relation to the other sites."
The Inspector then set out his reasons in the case of Appeal A:
"6. Having reviewed the site from both near and distant viewpoints, I share the Council's concerns about these posters on this site. Whilst acknowledging the commercial and industrial nature of the site and the proliferation of other signage in the immediate vicinity, I consider that these particular signs, in this location, detract from the character and appearance of this part of Leeds. I acknowledge that this site shares some of the characteristics of the other sites visited, especially the facts that it is on a major route and in a predominantly commercial and industrial area. However, in my view, there are fundamental differences in this appeal, which in any case must be assessed on its merits.
7. Firstly, it is evident that considerable improvements have been carried out along the railway embankment. Secondly, the bridge and its supporting structure have also been rebuilt and the panelled metalwork re-painted. In my view, this bridge and its immediate surroundings now provide an attractive feature as one of the 'gateways' to the city. Leading from the motorway, this route passes other advertisement signs but, at the bridge approach, the appeal panels are also seen in conjunction with the signage on the appeal site buildings; the highway directional signage and other typical street furniture elements within the road.
8. In my view the overall result is one which detracts markedly from the attractive bridge structure and its embankment. I consider that this amounts to 'visual clutter' in this particular locality."
Having considered that issue in a little more detail, the Inspector concluded:
"I consider, therefore, that the panels are harmful to the character and appearance of [this] part of the city."
"would detract from the attractive 'gateway' feature and that it would harm the character and appearance of the locality by hiding the existing embankment foliage and any future growth."
So Appeal B also failed on visual amenity grounds.
"In reaching my conclusions in both of these appeals, I have taken into account all of the other matters raised in favour of these two appeals. These include the full planning history; the physical nature and circumstances relating to approvals and consents at all of the other sites visited; the matters raised in relation to the 'Retail Media v Secretary of State' case and the fact that Policy BD12 of the UDP could be said to be over-prescriptive when considered against the positive advice on advertisements as set out in PPG19. However, none of these factors is so significant as to outweigh my conclusions that both proposals would visually harm the character and appearance of this part of Leeds."
"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."
"... the Regulations require decisions to be made only in the interests of amenity and public safety, and any other material considerations." (My emphasis)
"Many LPAs have adopted (usually after public consultation) policies, often with associated design guidance, controlling outdoor advertisements in their area, or in particular parts of their area where the display of poorly designed advertisements will be especially harmful. Such policies and guidance can be helpful in advising prospective advertisers on the type of advertising displays which are likely to prove acceptable in the locality... Design guidance should allow for flexibility in design, avoiding excessive prescription and detail, and concentrating rather on the broad framework within which advertisement proposals will be considered. But even though advertisement control policies or design guidance may have been formulated having regard to matters of amenity and public safety, references to these policies and guidance cannot by themselves be the decisive factor in determining whether an advertisement is to be permitted. Because the Advertisements Regulations require that applications be considered only in the interests of amenity and public safety, taking account of any material factors, it will always be necessary to assess the specific amenity and public safety merits of the proposed advertisement display (including relevant factors mentioned in this Guidance) in relation to the particular application site."
"...emphasised in oral submissions the improvements that had been made to both the bridge and the embankment along this prominent and well-used route into and out of Leeds. As I recall she described the site location as an 'entrance to the City.'"
There is also a letter from the second defendant's Department of Legal Services, dated 15 January 2003, which says, inter alia:
"Carol Cunningham was the Planning Officer present at the Inquiry held on 6th August 2002. It is her recollection that she did use the term 'entrance to the City' whilst giving oral evidence at the hearing and in the presence of the Inspector and the Appellant's Solicitor during the course of the site visit that took place."
In response to this Mr Hanna's second witness statement says:
"I would agree that in oral submissions Carol Cunningham of Leeds City Council indicated that the embankment had been improved and that the bridge had been rebuilt. The officer also advised that this was a prominent busy road. The suggestion that the officer advised the hearing that the appeal site and the adjacent bridge represented an 'entrance to the City' does not accord with my recollection."
"it is 'important for the LPA to be consistent in assessing visual impact in similar surroundings."
In the final sentence of that paragraph he made it clear that, while he had assessed these appeals on their own merits, he had:
"taken into account the detailed submissions of the appellants in relation to the other sites."
Thus it is plain that the Inspector was well aware of the claimant's arguments on consistency. That is no doubt why he took some pains in paragraphs 6, 7 and 8 to explain why he considered that there were "fundamental differences in this appeal."
In paragraph 6 he acknowledged that the site shared some of the characteristics of the other sites visited, especially the fact that it was on a major route and in a predominantly commercial and industrial areas.
"one which detracts markedly from the attractive bridge structure and its embankment."
"7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. 8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case."