QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BLOW UP MEDIA LIMITED UK LTD||Claimant|
|LONDON BOROUGH OF LAMBETH||Defendant|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Edwards [Mr M Lewis] (instructed by Steele and Co) appeared on behalf of the Defendant
Crown Copyright ©
"The advertisement display by reason of its size, positioning and design is an unduly dominant feature of the street scene, results in the loss of visual amenity for the surrounding area, creates unnecessary clutter and constitutes a potential danger to the safe operation of the users and operators of the road network and as such is contrary to policy CD 20 (display of advertisements) of the adopted Lambeth Unitary Development Plan and policy 34 of the Deposit Unitary Development Plan."
Scope of the Argument
"(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.
(2) Where there is in their area a hoarding or structure to which this section applies, a participating council may serve notice under this section on any person who appears to them to be responsible for the erection or maintenance thereof or, if after reasonable enquiry they have been unable to ascertain the name and address of such person, may affix a notice under this section to the hoarding or structure or exhibit a notice in the vicinity of the place where the hoarding or structure is fixed and serve a copy on the occupier of the land unless after reasonable enquiry he cannot be identified.
(3) A notice under this section shall require the removal of the hoarding or structure to which it relates within a period, being not less than 21 days after the date of the notice, specified in the notice, and shall state the effect of subsection (4) below.
(4) If a notice under subsection (2) is not complied with before the expiry of the period specified in the notice, the participating council may --
(a) enter on the land;
(b) remove the hoarding or structure and its fitments and dispose of them; and
(c) recover from the person on whom the notice was served the reasonable expenses incurred by them in so doing unless he satisfies them that he was not responsible for the erection, and is not responsible for the maintenance of the hoarding or structure."
"Power to remove or obliterate placards and posters
(1) Subject to subsections (2) and (3), the local planning authority may remove or obliterate any placard or poster --
(a) which is displayed in their area; and
(b) which in their opinion, is so displayed in contravention of regulations made under section 220.
(3) The council of a London borough may give notice in writing to a person who displays or causes to be displayed a placard or poster in respect of which they may exercise the powers conferred by subsection (1) --
(a) that in their opinion it is displayed in contravention of regulations made under section 220;
(b) requiring him to remove or obliterate it before the expiry of a period being not less than two days from the service of the notice, specified in the notice; and
(c) that if he does not do so, they intend to remove or obliterate it after the expiry of the period and recover from him the expenses reasonably incurred by them in so doing.
(4) Where a notice has been duly served under subsection (3) and the poster or placard to which it relates has not been removed or obliterated before the expiry of the period specified in the notice, the council of the London borough may remove or obliterate it and may recover from the person on whom the notice was served the expenses reasonably incurred by them in so doing; but in any proceedings for the recovery of such expenses it shall be for the council to show that the poster or placard was displayed in contravention of regulations made under section 220."
Nature and purpose of the power
Grounds of challenged relating to the Scheme of Delegation
"Subject to the exclusions referred to in paragraph 5 of the Corporate Scheme of Delegation, the Executive Director of Corporate Services is authorised to act on behalf of the Council on all matters relating to the discharge of the Corporate functions of the Council, which include but are not limited to the Council's regeneration, town planning, and development control functions; Legal and Democratic Services, the Youth Council, purchasing and supplies, payroll, pensions, valuation services, management of corporate property, central support services, rent officers, information technology and telecommunications. (NB certain Corporate functions are discharged by the Assistant Chief Executive)."
Paragraph 1 therefore delegates to the EDCS general powers relating to town planning and development control functions, subject to the exclusions referred to in paragraph 5 of the Corporate Scheme of Delegation.
"The authority to determine Town Planning Applications and related matters (including enforcement decisions) as set out in the Scheme of Delegation is delegated to the Assistant Director for Planning."
That is the paragraph relied on by the defendant for the delegation of the power to issue section 11 and section 225 notices from the EDCS to Mr Brown, the Assistant Director of Planning.
"Functions, matters, powers, authorisations, delegations, duties and responsibilities within this Scheme shall be construed in a broad and inclusive fashion and shall include the doing of anything which is calculated to facilitate or is conducive or incidental to the discharge of anything specified."
"The authority to determine Town Planning Applications for consent under the Rush Common Act 1806 is delegated to the Divisional Director for Community Renewal (Planning) ..."
"An officer to whom a power, duty or function is delegated may nominate or authorise another officer to exercise that power, duty or function, provided that officer reports to or is responsible to the delegator."
"Any power transferred under this scheme of delegation may not be further delegated without the express approval of the Chief Executive, or the Executive Director."
"1. Pursuant to section 101 of the Local Government Act 1972, I, Les Brown, as the Assistant Director for Community Renewal (Planning) am empowered to deal with the matters set out paragraphs 5 and 6 (as detailed on page 23 of part 3 section 4 (delegated powers)) of the Council's constitution agreed at the Annual Meeting of the Council held on 18th May 2005.
3. Pursuant to the said scheme of delegation and the express approval of the Executive Director of Corporate Services I hereby delegate to you, Faye Tomlinson, Sheree Bennett, Lucy Kelly, Fiona Winder, Andy Hollins, John Flynn and Richard Saunders authority to make all the said decisions which are otherwise reserved to me as the Assistant Director for Community Renewal (Planning)."
"Equally clearly, the performance of such duties as in consequence fall upon the respondents' treasurer could not possibly all be performed by him personally, and Parliament cannot possibly have intended that this should be so. The respondent's treasurer required staff to carry out the financial affairs which he is enjoined to administer."
Enforcement Services Limited
Failure to take material consideration into account
"... the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
(a) Whether the new reasons are consistent with the original reasons.
(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
(d) The delay before the later reasons were put forward.
(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly."
"Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ...
The preceding provisions shall not however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ..."
100. The claimant's case on this aspect can be shortly stated. It is contended that the claimant's rights under Article 1 of the First Protocol were engaged and that it is clear from the officer's report that there was no consideration at the time of the issue of the notices whether the action to be taken was proportionate. There was no evidence in the report that the officers considered whether other less draconian measures would suffice. This was another area where the claimant submitted that I should not accept ex post facto evidence, relying on the same line of authorities to which I have referred. Reference was also made to R (on the application of Carlton-Conway) v London Borough of Harrow  JPL 1216 where Pill LJ stressed the importance of planning officers making a contemporaneous record when exercising delegated powers.
"... the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision, the aspect addressed by the court in the passage from its judgment in Chapman's case 33 EHRR 399 quoted above. But the House has been referred to no case in which the Strasbourg court has found a violation of Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning ..."