England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/07/2006

Lord Justice Latham:

1. On the 3^rd February 2006, the appellant was convicted at the Cardiff Magistrates Court of five counts of unlawfully displaying advertisements contrary to Section 224 of the Town and Country Planning Act 1990, as amended by the Clean Neighbourhoods and Environment Act 2005. The respondent had complained that five signs relating to the letting of flats had remained displayed at the relevant premises outside the period of deemed permission granted by Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) Regulations 1992. Deemed permission is given in this schedule, inter alia, to advertisements relating to the letting for residential use of premises on which the advertisement is displayed. This deemed permission is subject to the condition that it should be removed within 14 days after "a tenancy is granted". In each case, it was said by the respondent that a sign indicating that the premises had been "Let By" the appellant had remained in situ well after 14 days from the date upon which the respective tenancies had been granted. The justices agreed. Further, the justices concluded that the appellant had failed to establish, the burden being on it, that it had taken all reasonable steps to secure the removal of the signs, a defence provided by section 224(6) of the Town and Country Planning Act 1990, as amended.
2. The appellant appeals to this court by way of Case Stated. The justices have identified the following questions for determination by this court:

"(i) whether the Justices were entitled at the submission of no case to answer, to come to the conclusion that the phrase "tenancy is granted" (undefined as it is in the regulations) is not necessarily when the tenancy agreement is formally signed, but when the board is changed from "To Let" to "Let By " when a decision has been taken to remove the property from the lettings market?

(ii) Although the authority was not cited before the justices, was this a case falling under Section 101 of the Magistrates Court Act 1980 which provides that:

"Where a defendant to an information or complaint relies for his defence on any exception exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this not withstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification.

(iii) Whether we were correct to find as we did on the evidence before us that each of the advertisements was displayed with the knowledge of Barbara Rees Ltd and whether we were entitled to find that they had not taken all reasonable steps to secure the remove of the signs in respect from the five properties. "

3. The questions are not happily worded. There are essentially two questions which are raised by the facts found in the Case Stated. The first question is whether or not the justices were entitled to conclude, as they did, that the change in the sign from "To Let" to "Let By" was prima facie evidence that a tenancy of the relevant premises had been granted. The solicitor acting on behalf of the appellant had submitted at the close of the respondent's case that there was no case for his client to answer because at that stage the only evidence as to when the relevant tenancy had been granted in relation to each sign was the change in wording on the sign board. The justices concluded that that was, in itself, sufficient evidence in the absence of material to the contrary to justify the conclusion that a tenancy had been granted, otherwise why would the appellant put up a sign taking the premises off the market.
4. Before us, Mr Morgan on behalf of the appellant, submitted that that was wholly insufficient evidence upon which the justices could rely for determining the date upon which a tenancy has been granted. He referred us to sub-para (2) in the Schedule granting deemed permission which provides as follows:

"No advertisement may be displayed indicating that .... premises have been .... let, other than by the addition to an existing advertisement to a statement ... letting has been agreed, or that the ... premises have been let, subject to contract."

5. He points out that the consequences of this sub-para taken with the condition that the advertisement should be removed within 14 days after the tenancy has been granted, must, by clear implication, mean that a statement that a letting has been agreed or that the premises have been let subject to contract cannot be any evidence that a tenancy has been granted. The envisaged sequence is that a sign advertising the premises for let would be followed by a sign indicating that a letting has been agreed or let subject to contract, followed by the granting of a tenancy. Insofar as it goes, that submission is clearly correct. It does not, however, answer the question which the justices had to answer which was whether the words "Let By", were prima facie evidence that a tenancy had been granted. In my judgment, the justices were perfectly entitled to conclude that it was. It was an unambiguous assertion without any qualification, that the premises had been let. In ordinary parlance, that indicated prima facie that a tenancy had been granted. But it was clearly open to the appellant to put before the justices evidence to displace that inference and to show in truth that the tenancy in question had not been granted until a significantly later stage.
6. In fact, from the evidence called by the appellant it appears that the tenancies may well have been granted after the date of the addition of the words "Let By" to the signs. These were all what have been described as student lets. As may be imagined the process of concluding any tenancy agreement with a number of students is often far from straight forward. The evidence showed that premises such as the ones in question would often go onto the market relatively early in the calendar year with the expectation that the tenancies themselves would commence once the summer term at university had concluded. At one point it was suggested that all the tenancies which were ultimately created commenced on the 1^st July of 2005. It appears in fact that one of them commenced on the 1^st June 2005. There can be no doubt that whatever meaning is given to the phrase "a tenancy is granted" the latest stage at which these tenancies could have been granted was therefore as to four of them on the 1^st July and the other one the 1^st June. Equally there was no doubt on the evidence that the signs in question remained in position long after fourteen days from those dates. Once the justices had, accordingly, found that there was a prima facie case against the appellant, the sole question was whether or not it had been able to establish the defence provided by section 224(6), namely that it had taken all reasonable steps to secure the removal of signs. There was no issue as to the appellant's knowledge that the signs remained in position; that was admitted.
7. There is no dispute before us, despite the formulation of question (ii) in the Case Stated, that the appellant bore the legal burden of establishing that defence on the balance of probabilities. In order to do so, it gave evidence that as was the practice of estate agents, certainly in the Cardiff area, the work of erecting and removing signs was sub-contracted. The sub-contractors it used were a company known as Solar Signs, which had given them no cause for complaint until 2005, when its service became erratic. It in fact went into receivership during the course of 2005 and was subsequently taken over by a company known as Able Signs which traded from the same premises. The signs were always the property of the sign company.
8. Instructions as to the erection and removal of signs were given by fax. The evidence as to what happened in 2005 was summarised in the Case Stated in the following terms:

"The method of instructing both companies was to fax instructions concerning any relevant property and photocopies of the faxes sent by Barbara Rees Ltd on 4^th February 2005, 15^th March 2005, 15^th April 2005 and 11^th August 2005 were exhibited. Both Barbara Rees Ltd and Charltons Residential experienced difficulties with both Solar Signs and Able Signs. We were told that numerous telephone calls were made to these firms, although there were no formal notes kept of the contents of these calls or when they were made. Jacqueline Rees gave evidence that the Managing Director of Barbara Rees, Paul Rees went on one occasion to see the sign company but to no avail. Alex Galloway for Charlton's had taken legal advice from their solicitors as to what action they might take in relation to the bad service provided by the sign company. The evidence of Alex Galloway is that she and Jacqueline Rees exchanged information in relation to board companies in relation to the bad service being provided and that Alex Galloway passed on the information that she had obtained from her firm of solicitors. Two letters from Barbara Rees to the City Council were produced the first of these was dated 10^th August 2005 and explained the companies difficulties, the second was dated the 11^th August 2005 and confirmed that instructions had been given to the sign company to remove the "Let By" signs at the five properties. Jacqueline Rees also gave evidence that it was the understanding of all letting agents that the granting of the tenancy from which the 14 day period for the removal or "Let By" signs runs, was when the letting was completed "When the agreement has been signed by the tenants and the landlord ......." When the legal documentation has been completed. In support of this she produced a Guidance note completed by Andrew Thomas ARLA Regional Council Member, (Association of Residential Letting Agents)."

9. The conclusion of the justices on this issue was as follows:

"We were not of the opinion that sending faxes to remove the boards on 4^th February 2005, 15^th March 2005, 15^th April 2005 and 111^th August 2005 (the last being a dated after the offences alleged in the Summonses) together with one visit to the firm and unspecified and unlogged telephone calls over a six month period amounted to reasonable steps to secure the removal of the advertisements. In addition, in contrast to the firm of Charltons, they had not consulted a solicitor. Prior to August, the last fax was in April, this at a time when they were experiencing difficulties with the sign company. No recorded steps were taken by Barbara Rees Ltd to remedy the situation between April and August. As a result we were not satisfied on the balance of probabilities that all reasonable steps had been taken to secure the removal of the "Let by" boards"

10. Mr Morgan submits to us that this was a perverse conclusion for the justices to reach. He submits that there was nothing more that his clients could have done. He particularly submits that the justices were wrong to criticise the appellant for not having taken legal advice, when it was plain that they had been told of the advice given to Charlton. He further complains that the justices were wrong to have used this evidence, which was called by the appellant in its own defence, as material supporting a criticism of the appellant.
11. I can see nothing perverse about the conclusions of the justices in this respect. The particular criticism that they make of inactivity between April and August, is in my view, unanswerable. The justices were perfect entitled to take into account all the evidence before them before coming to their conclusions. It is often the case that defence evidence turns out to be less helpful than the defence hoped. In this case the point made by the justices is that the fact that Charlton took steps to obtain legal advice but that the appellant did not was a matter which could properly be taken into account when deciding whether or not the appellant was taking the sort of steps that one would expect if they were serious in trying to ensure that they complied with the law. It is particularly noteworthy that the justices were not provided with any copy of the agreement with either Solar Signs or Able Signs. One would have expected such an agreement to have contained appropriate clauses giving the appellant the right to remove the signs itself or take other effective action if the sub-contractor failed to act in compliance with the instructions where those instructions were to ensure compliance with the law. Either the appellant had not arrogated to itself such elementary rights, or it failed to exercise them. In any event, the justices conclusion is, in my view unassailable.
12. We have been asked to provide a definition for the phrase, or otherwise identify the moment of time at which, "a tenancy is granted" for the purposes of the Regulation. As can be seen from the facts that I have set out above, this issue is a question which does not arise in the present case, and does not form part, properly understood, of the questions asked and issues raised by the Case Stated. The latest date will undoubtedly be the date upon which the tenancy itself commences. And this was sufficient for the purposes of the prosecution in this case. But the phrase is undoubtedly apt to cover the moment at which the parties to and the terms of the tenancy have become certain so that a binding contract has come into existence. That may or may not, depending on the circumstances, be evidenced by signatures on documents. As the issue is not before us, I do not propose to say more.
13. As far as the questions proposed by the Case Stated are concerned, the answers I would propose are as follows:

(i) The justices were entitled to conclude that the change to "Let By", was prima facie evidence of a tenancy having been granted;

(ii) Yes.

(iii) Yes.

14. I would accordingly dismiss the appeal.

Mr Justice McCombe: I agree.