England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 November 2013

Mr Justice Collins:

1. This is an application pursuant to Section 288 of the Town & Country Planning Act 1990 (the 1990 Act). The applicants seek to quash an order made by an inspector upholding a discontinuance notice which had been made by the second respondent on 8 May 2012 requiring the applicants to discontinue the use of a site at land adjacent to 279A Finchley Road, NW3 6LT for the display of advertisements. The notice required the use to be discontinued within 28 days. The applicants appealed to the Secretary of State pursuant to the provisions of s.78 of the 1990 Act as substituted under powers conferred by s.220 of that Act by the Town & Country (Control of Advertisements) (England) Regulations 2007 (2007 No. 783) (the 2007 Regulations). On 13 February 2013 the inspector upheld the notice save that he extended the time for compliance to 3 months.
2. The first applicant is the owner of the land and the second applicant is the advertiser. There has been an advertisement hoarding on the site for some 37 years. It has deemed consent pursuant to Regulation 6 of the 2007 Regulations having been used for 10 years without any material increase in the extent to which the site has been so used or any material alteration in the manner in which it has been so used (see Class 13 in Schedule 3 to the 2007 Regulations).
3. The power to serve a discontinuance notice where there is a deemed consent derives from Regulation 8 of the 2007 Regulations. Regulation 8(1) provides:-

"… the local planning authority may, if it is satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public, serve a notice requiring the discontinuance …

(b) the use of a particular site for the display of advertisements for which there is deemed consent."

Regulation 8(2) requires a notice to specify a period within which the use of the site is to be discontinued and it must contain the reasons why it is considered to constitute a substantial injury to the amenity or a danger to members of the public and why it was considered necessary to serve the notice. Regulation 8(4) provides:-

"Subject to paragraphs (5) and (6), a discontinuance notice shall take effect at the end of the period (being at least 8 weeks after the date on which it is served) specified in the notice."

Paragraph (5) extends the time for compliance while any appeal is pending. Paragraph (6) enables the LPA to vary a notice from time to time by extending the time for compliance. It is thus clear that the LPA can exercise discretion in setting the time for compliance subject to giving a minimum of 8 weeks following service. The notice in this case gave the minimum period of 8 weeks.

4. The reasons given for why the council considered that the advertisement caused substantial injury to the amenity of the locality were that it was visually harmful in not respecting the height of the adjacent building and that it did not "contribute to the public realm" (whatever that may mean) and had a detrimental impact on the surrounding area. In addition it was considered to be contrary to two policies in the Council's Local Development Framework Development Policies adopted in 2010. It seems the council's decision was based on what it called its hoarding removal initiative being run throughout the borough.
5. The first respondent issued a circular 03/2007 to accompany the 2007 regulations. Paragraphs 78 to 86 set out material considerations which LPAs should take into account in deciding whether discontinuance notices should be served. These largely set out the matters covered in Regulation 8. Paragraph 82 is important for the purposes of this case. It reads:-

"Regulation 8(3)(c) provides that a notice must also specify the period within which the display or the use of the site must be discontinued. It will take effect at the end of this period unless there is an appeal or the notice is withdrawn or varied to extend the period. Local Planning Authorities should always consider the particular circumstances and allow a reasonable time for discontinuing a display, or use of a site, especially when discontinuance action is likely to have a serious financial consequence for a particular advertiser."

6. The applicants' appeal challenged the council's view that the advertisement hoarding caused substantial injury to the amenity of the locality. They relied on the length of time that a hoarding had been on the site and the absence of any complaints about it. The other points made gave particulars of why it caused no substantial harm. The first applicant had submitted an application for approval of development for residential accommodation. It seems that there was not likely to be any objection to residential development, but the council has continued to object to the proposal on the basis of design and the nature of the proposed accommodation. At the time the notice was served, it was anticipated that planning approval would be granted within about 18 months when the hoarding would in any event be removed. Thus the council was urged to give a time for compliance of at least 18 months. The council refused. Since then the council has refused planning permission and an appeal against that refusal is pending. Thus further time is, the applicants contend, needed.
7. The advertisement itself consists of what is known as a 48 sheet LED illuminated panel. It shows a number of different advertisements on the same screen. These follow each other, each being displayed for a relatively short time. This form of advertising was set up in 2011 at a cost to the second applicant of some £100,000. It has not been suggested that this constituted any material change which could have affected the continuation of the deemed consent. But it meant that the second applicant needed time to recover the capital outlay and would, therefore, suffer severe financial detriment if not given a reasonable time before the hoarding had to be removed. Before the inspector, 18 months was requested if he upheld the council's decision that the advertisement caused substantial harm to the amenity of the locality.
8. The substance of the inspector's decision commenced with paragraphs 3 to 6, under the heading 'Preliminary matters'. In paragraph 5 he recognised that discontinuance action would inevitably cause financial loss, but the need for the advertisement and whether or not it contributed to future sustainable development on the site were not factors which could carry weight in determining whether substantial injury to amenity or danger to the public was being caused. Nor was it material that it would only remain temporarily.
9. The applicants have submitted that the inspector was wrong to consider that the NPPF, which included specific policies in relation to advertising so that they were to be regarded as part of the planning system, was not a material consideration in deciding on whether there was damage to amenity or danger to public safety. In my judgment, the inspector was correct since the decision in relation to injury to amenity must depend on the state of affairs which existed at the time of service of the notice and the appeal. But its contribution to sustainable development would result, as in this case, from the revenue resulting from it. The first applicant asserts that that revenue will assist in payment of fees and other costs involved in the process of applying for planning permission. Thus it is clearly relevant in relation to the time which may be appropriate for compliance with the discontinuance notice.
10. In paragraph 6 the inspector referred to the applicants' submissions based on the length of time the site had been used for the display of advertisements without any complaint. The inspector concluded:-

"The longevity of the use of the site for the display of advertisements and the lack of any known objections to such use cannot carry weight in the decision on the appeals."

11. Mr Cross submits that this conclusion related only to whether there was substantial injury and not to the length of time to be allowed for compliance. The inspector considered separately the two issues before him. In paragraph 14 when dealing with the adequacy of the compliance period, having set out the reasons relied on by the appellants for submitting that the period was unreasonably short, he observed:-

"The above concerns have very largely been considered, in relation to the appropriateness of the councils' decision to take discontinuance action, in the preliminary matters section above."

These observations are inconsistent with Mr Cross's submission that what was said by the inspector in his conclusions in paragraph 6 was limited to the issue of substantial injury. In paragraph 5 he had specifically limited his views of the relevance of the furtherance of sustainable development, but he made no such limitation in paragraph 6. I have no hesitation in rejecting Mr Cross's construction of the inspector's decision.

12. In my view the length of time advertisements have been on the site without complaint is capable of affecting the decision on both injury and time for compliance. However, since the question of injury will essentially depend on the inspector's judgment having seen the advertisement on site, it will at best carry very limited weight on that issue. Thus I do not think it can constitute an error of law which suffices to render the decision of the inspector on injury erroneous. Mr Kolinsky has recognised that it is not possible for him to persuade me that the inspector's judgment on the issue was otherwise wrong in law and, as I have said, I do not think the exclusion of the longevity without complaint renders it wrong. Thus in my judgment the decision that the notice was properly decided by the council to be needed must stand.
13. In dealing with the adequacy of the compliance period, the inspector noted that his attention had been drawn to paragraph 82 of Circular 03/2007. He noted too the evidence of financial detriment and the need the appellants had set out for 18 months or at the very least 12 months. In paragraphs 17 and 18 the inspector stated:-

"17. Regulation 8(c) states that every discontinuance shall specify the period within which the display or the use of the site, as the case may be, is to be discontinued. Given that the discontinuance notice in this case concerns a use of land that, for the reasons set out above, involves substantial injury to visual amenity, it is imperative that the compliance period is not prolonged beyond what is absolutely necessary. In this respect, what is absolutely necessary is to provide a reasonable period in which to physically cease the use of the site for the display of advertisements with deemed consent by the permanent removal of the existing display unit. The reasons why the appellants seek an 18 months compliance period are noted. However, such a period would be tantamount to a grant of temporary express consent for a substantially harmful advertisement display. That would call into question the expediency of issuing the notice in the first place. The advice in paragraph 82 of Circular 03/2007 needs to be read in this context.

18. At the hearing Primesight stated that whilst it would be physically possible to cease the use within the 28 day period specified in the notice, they would incur additional costs in this particular respect to comply within this time period. Given the substantial size of the supporting structure, a period of 28 days does seem rather short to arrange for and complete the removal of the existing display. Instead an extended period of 3 months, to which the Council would not object, would provide a reasonable period to ensure compliance without any additional costs being incurred in the removal process."

14. The inspector in paragraph 17 is in effect ignoring paragraph 82. He suggests that the only time which should be given is such as will provide a reasonable time "in which to physically cease the use of the site for the display of advertisements with deemed consent". It is clear that in paragraph 18 he chooses 3 months because that will be needed to remove the structure which is of considerable size. Mr Cross has submitted that he did not limit his consideration solely to those matters, but that, having regard to what he said, is an impossible submission.
15. No doubt where substantial danger to public safety is established it will not be easy to justify any extension beyond the minimum period whatever the financial effects of discontinuance. But injury to amenity is not in the same category. Naturally discontinuance must take place as soon as reasonable in the circumstances. Here, longevity and lack of complaint is in my view relevant since it does not suggest any real public concern about the injury to amenity. Furthermore, financial considerations are relevant and it is wrong to disregard the guidance given in the Circular. The inspector was wrong to limit time of compliance to such as was absolutely necessary to provide a reasonable period for physical removal. Such limitation is not only contrary to the guidance but conflicts with Regulation 8(4) and (6) which recognise that the 8 week period is a minimum and that the time can from time to time be extended.
16. Mr Cross has submitted that the inspector was not obliged by the Regulations to take the financial matters raised by them into account and so could not be said to have acted unlawfully in not doing so. As I have said, guidance from the Secretary of State is in all planning decisions a material consideration and is equally material in these discontinuance appeals. The attempt to limit what ought to be considered in the way submitted cannot succeed. Equally, his submission that the inspector did not limit his consideration as the applicants have contended is without foundation.
17. In the circumstances, the inspector's decision in relation to time for compliance cannot stand. I will hear counsel on the relief I should grant, but I suspect it may be simply that his decision is quashed.