Scottish Court of Session Decisions

The petitioners in this application for judicial review carry on business as, inter alia, operators of advertising panels. These panels consist in glazed frames or cabinets attached to the walls of buildings, into which are inserted advertisements. The petitioners aver that, for many years they have used advertising panels of the kind described in the city of Glasgow for the purpose of conducting advertising campaigns on behalf of their clients.

It is a matter of agreement that, on 30 April 1998, the respondents raised what the petitioners describe as purported notices under Section 187 of the Town and Country Planning (Scotland) Act 1997, hereinafter referred to as "the Act of 1997", which stated that "it is considered that the placard/poster displayed at ... is so displayed in contravention of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 .... Before this notice comes into effect you are required to (a) exhibit evidence of advertisement consent; or (b) remove the placard/poster otherwise the Planning Authority intend to take direct action against the placard/poster on the expiry of the period for compliance. This notice shall come into effect on 7 May 1998." The notices concerned, which have been produced, are comprised within 6 of process. They relate to 30 advertising panels operated by the petitioners in the Glasgow area.

In this petition, to which answers have been lodged by the respondents, both the petition and answers having been adjusted, the petitioners seek (a) declarator that said notices are unlawful, invalid and of no effect; (b) reduction of said notices; and (c) interdict and interdict ad interim against the respondents, or anyone on their behalf, from removing or obstructing any advertisement contained within advertising panels operated by the petitioners in pursuance of purported notices issued by the respondents under Section 187 of the Act of 1997, dated 30 April 1997. The petitioners challenge the said notices issued by the respondent on a number of grounds, which are set forth in paragraph 5 of the petition. For the present purposes, it is sufficient for me to notice in detail the first two of these grounds. They are in the following terms:

When this matter came before me at a continued First Hearing, senior counsel for the petitioners said that it was agreed that some of the issues raised in the petition could not be disposed of without proof. That was true of the ground stated in paragraph 5(c) of the petition; there was a question as to whether the ground stated in paragraph 5(d) could be disposed of without proof. However, the subject matter of paragraphs 5(a) and (b) raised issues of law, which could be resolved at the present time without proof. If they were to be so resolved in favour of the petitioners, that would lead to the granting of the orders sought. In the circumstances, counsel for the petitioners moved the court to grant the orders sought on the basis of the grounds set forth in those particular paragraphs.

Counsel for the petitioners explained that responsibility for the control of advertising on public sites belonged to planning authorities. This control had two aspects. In the first place, it was a species of development control. In the second place, there was a "hygiene" function, in relation to "fly-posting", effected without the consent of the owner of the property concerned. In the planning legislation, there were to be found two codes of provisions reflecting these different aspects of the function. There were provisions relating to the control of advertising and also measures against "fly-posting". Counsel for the petitioners submitted that the distinction between these two codes lay in the machinery which they contained. The code for controlling the display of advertisements contained procedures of enforcement which were parallel to those used generally in development control. However, on the other hand, the anti "fly-posting" measures provided for summary remedies which were quite different from those available under the normal system of development control. The approach to these matters displayed by the respondents had caused the petitioners to approach the court for clarification of the applicability of the two codes in relation to their business.

It was illuminating, in a consideration of the scope of Section 187 of the Act of 1997, relied upon by the respondents, to examine the history of that provision. The Scottish Development Department had issued a consultation paper, dated 28 July 1989, which was relevant and had been produced; it was concerned with proposals for improving the efficient operation of the development control system and other planning procedures. Paragraph 3.13 of the paper dealt with the problem of "fly-posting". It was there narrated that the powers of planning authorities in Scotland to take action against "fly-posting" were then limited to serving an enforcement notice on the owner, occupier or lessee of the land or on the person displaying the advertisement. These procedures could be time consuming and the Government considered that authorities should have powers to take action to deal speedily with "fly-posting", as local authorities in England and Wales did. It was therefore proposed to amend Section 101 of the 1972 Act to give planning authorities powers to remove or obliterate any placard or poster which was being displayed without consent. The power would be subject to the planning authority having served notice on the person displaying the poster or placard if they were identified on the poster. If the person was not identifiable the planning authority would be empowered to take action without service of a notice. Following upon consultation on that issue, by Section 56 of the Planning and Compensation Act 1991, there was introduced into the 1972 Act, as Section 102A, the provision with which the court was now concerned, currently to be found in Section 187 of the Act of 1997. Those provisions authorised the removal or obliteration in certain circumstances of "any placard or poster". Furthermore, it was right to point out that there existed a new consultation paper by the Scottish Office Development Department dated March 1998, which was relevant to the matter. That consultation paper, which had been produced, dealt with the problem of "fly-posting" in paragraphs 17-19 inclusive. Those paragraphs of that document were concerned with the difficulties which planning authorities faced in their attempts to curb "fly-posting". In paragraph 17, it was stated that there was no formal definition of "fly-posting", although it was widely regarded as the putting up of posters and placards on vacant shop windows or other unoccupied sites. In paragraph 18, it was recognised that there were in being a number of provisions aimed at controlling "fly-posting". These included enforcement action and Section 187 of the Act of 1997. Counsel for the petitioners submitted that, on the basis of the foregoing documents, it was obvious that the Government recognised the distinction between control of advertisements and provisions to deal with "fly-posting".

Counsel for the petitioners next proceeded to draw attention to the Section 187 procedure sought to be operated in the present case. By way of example, he referred to the notice served on the petitioners by the respondents relating to what was described as the "placard/poster" displayed at 1271 Shettleston Road, Glasgow. This notice referred to Section 187 of the Act of 1997; it narrated that the respondents considered that the "placard/poster" displayed at the address concerned was so displayed in contravention of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 (as amended), made under Section 182 of the Act of 1997. In this notice it was stated that, before the notice came into effect, the respondents were required to (a) exhibit evidence of advertisement consent; or (b) remove the placard/poster otherwise the planning authority intend to take direct action against the placard/poster on the expiry of the period for compliance. It was made clear in the notice that there was no right of appeal against it, which was true under the provisions of Section 187.

Counsel for the petitioners next referred to the provisions of the Act of  1997 themselves. In particular, he drew attention to Part VII Chapter III, comprising Sections 182-187 inclusive, relating to advertisements. Considering the provisions of Section 187, upon which the respondents here relied, it was to be noted that sub-section (1) was the operative enactment. It was to be observed that sub-section (2) provided that "Sub-section (1) does not authorise the removal or obliteration of a placard or poster displayed within a building to which there is no public right of access." It was plain from these provisions that there was no authorisation granted for the removal of a building. The petitioners' advertising material was contained in locked glazed cabinets, in some cases illuminated, which were fixed to the walls of buildings. It was obvious from the provisions quoted that the respondents' power under this section did not extend to the interior of a "building". The word "building" was defined in Section 277(1) of the Act of 1997 in this way:

The petitioners' position, quite simply stated, was that their glazed cabinets were parts of buildings and hence fell within the statutory definition of "building". It therefore followed that the powers conferred by Section 187(1) did not extend to any advertising material displayed within such a cabinet.

Counsel for the petitioners next proceeded to consider the terms of the Regulations made under Section 182 of the Act of 1997, which provided a code for the controlling of the display of advertisements. It was the petitioners' contention that that code applied to the glazed cabinets belonging to the petitioners. The Regulations concerned were the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 (S.I. 1984 No. 467). It was to be observed that, in terms of Regulation 10 and Schedule 4 to the Regulations, certain classes of advertisement could be displayed without express consent. However, otherwise consent was required. Regulation 2 provided statutory interpretations for expressions used in the Regulations. The word "building" was defined in a similar way to the definition found in the Act of 1997; the word was to include "any structure or erection and any part of a building as so defined". The word "advertisement" was defined very widely, the definition plainly would apply to the material enclosed in the petitioners' glazed cabinets. Regulation 3(2) provided for the application of the regulations to the display of an advertisement within a building so as to be visible from outside that building, if the advertisement fell within any of paragraphs (a), (b) or (c), which the petitioners' material plainly did. Regulation 24 provided for the enforcement of advertisement control, in a manner parallel to normal enforcement of planning control. Regulation 25 provided for appeals to the Secretary of State in connection with enforcement notices, within the terms of Regulation 24.

Counsel for the petitioners argued that it was evident from the Regulations that the "fly-posting" regime did not apply to all advertisements and moreover that the control of advertisements regime, created by the Regulations of 1984, did apply.

Looking at more general considerations, the court ought to favour the interpretation of the law contended for by the petitioners. The petitioners were engaged in a legitimate commercial operation, along with many other operators. They had invested money in the provision of the glazed cabinets and advertising material displayed by them on behalf of clients. It was quite inappropriate that the summary provisions of Section 187, designed to counteract the evil of "fly-posting" should be considered applicable to the petitioners' operation. In that connection, it was of great importance that Section 187 provided no mechanism for appeals, whereas the Regulations of 1984 did. In principle, it was quite wrong that the property of a commercial organisation should be interfered with, damaged or destroyed by a public authority without any right of appeal being available against that course.

Counsel for the petitioners briefly referred to the ground set forth in paragraph 5(b) of the petition. He argued that the lack of a need for specification in a Section 187 notice as to how the regulations had been breached pointed in the direction of a very limited ambit for the Section 187 procedure. In all of these circumstances counsel for the petitioners moved me to sustain plea-in-law 1 for his clients and grant the remedies sought.

Counsel for the respondents agreed that the ground stated by the petitioners in paragraph 5(a) raised a pure question of law which was capable of being decided without factual enquiry. It was accepted by the respondents that all of the petitioners' advertisements were contained within glazed panels affixed to buildings. So far as Section 187 of the Act of 1997 was concerned, the position of the respondents was that the words "placard" and "poster" were synonymous, as appeared from the definitions of those words to be found in the Shorter Oxford English Dictionary. If the respondents' contention that they were empowered to obliterate the petitioners' advertisements in terms of Section 187(1) was correct, that could be done, without causing damage to the glazed panels, by affixing a sheet of blank paper over the panel; removal of the structure would not be necessary. It was accepted that removal could involve damage to the glazed panels themselves. Furthermore, there was no doubt that the panel and what was contained within it were "advertisements" within the meaning of Regulation 2(1) of the Regulations of 1984. However, the character of what was inside the glazed panel did not change by virtue of its having been put inside a frame or cabinet. What had been inserted in the panels were "placards or posters". It was accepted that Section 187 of the Act of 1997 was a provision directed against "fly-posting". It was also accepted that what the petitioners did would not ordinarily be described as "fly-posting".

In relation to the submission made on behalf of the petitioners, to the effect that the glazed panels were "buildings", within the meaning of Section 277(1) of the Act of 1997, the respondents' position was that the glazed panels were not "buildings" as such. The respondents argued that anything falling within the definition of "advertisement" ought not to be considered as part of a building. So far as Regulation 3 of the Regulations of 1984 was concerned, it was submitted that it was disapplied by paragraphs (c) and (d) of Regulation 3(1). In the light of the circumstances, the proviso to paragraph (c) applied here; the glazed panels were fixed to buildings. It was obvious from the terms of Regulation 2(1) that a distinction had to be drawn between an "advertisement" and a "site" in relation to an "advertisement". The land or building involved was the "site", whereas the "advertisement" was something else which could be displayed on it. The respondents accepted that in interpreting Section 187 of the Act of 1997, in the first instance, it was necessary to look at the terms of Section 277(1). However, it was also appropriate to look at the terms of the Regulations of 1984, which were to be taken to be consistent with the terms of the statute. Section 277(1) contained definitions of the words "advertisement" and "building"; it appeared to follow from that that an advertisement was something different from a building.

Counsel for the respondents next turned to deal with the ground of action stated in paragraph 5(b) of the petition. He submitted that no specification was necessary according to the terms of Section 187(1)(b). It was instructive to compare the terms of that provision with those of Regulation 24 of the 1984 Regulations. Under Regulation 24(3) certain matters required to be specified in a notice served under it. Counsel for the respondents indicated that it would be desirable if the two systems of control under discussion could be clearly differentiated. However that might not be possible, in view of the wide definitions employed in them. Indeed, it was not obvious that there were two systems of control with watertight definitions. The only real question for the court was whether Section 187 had been correctly invoked by the respondents in the present case. In conclusion, counsel for the respondents moved me to repel plea-in-law 1 for the petitioners and sustain plea-in-law 1 for the respondents in part; in that event, a proof would be necessary.

In reply, senior counsel for the petitioners emphasised that the provisions of Section 187 of the Act of 1997 were not unlimited in scope. That provision was expressly limited by virtue of sub-section (2), which made it clear that the section did not authorise the removal or obliteration of a placard or poster displayed within a building to which there was no public right of access. The fact was that there was nothing in any definition which had the effect of excluding the glazed cabinets or panels from the definition of a building applicable. Looking at the terms of Section 277(1), it was plain that the definitions of "building" and "advertisement" were not mutually exclusive; certain elements contained within the definition of "advertisement" might fall within the definition of the word "building". One of the important features of the situation was that no power of entry to a building was conferred on a planning authority by the terms of Section 187 of the Act of 1997; sub-section (6) dealt only with entry to land.

It was a matter of agreement between the parties to this petition that the question in dispute in the debate before me was whether the terms of Section 187 of the Act of 1997 empowered the respondents to proceed by way of notice under that section, as they had done, in the agreed circumstances of this case. The circumstances to which I refer include, of course, that, in all cases, it is accepted that the petitioners' advertisements were housed within glazed cabinets or panels, which themselves were affixed to buildings at the addresses stated in the various notices. It is quite plain that Section 187(1) authorises only the removal or obliteration of any placard or poster (a) which is displayed in the area of the planning authority concerned and (b) which in the opinion of that authority is so displayed in contravention of the regulations made under Section 182 of the Act. It is quite apparent from the terms of Section 187 that it does not authorise the planning authority to remove or interfere with a building or any part of it. Furthermore, sub-section (2) of Section 187 makes clear that sub-section (1) does not authorise the removal or obliteration of a placard or poster displayed within a building to which there is no public right of access. It was argued on behalf of the petitioners that these provisions of Section 187, in association with the definition of "building" found in Section 277(1) of the Act entailed that the respondents could not lawfully use Section 187 in the circumstances of the present case, because of the glazed cabinets or panels in which the petitioners' advertisements were contained, fell within the terms of the definition of "building". That definition of course includes any structure or erection and any part of a building as so defined. The conclusion which I have reached is that the petitioners contentions in this respect are well founded. In my opinion, the petitioners' glazed cabinets or panels, which are affixed to buildings, must themselves be regarded as parts of a building and hence themselves a "building", within the terms of the definition in Section 277(1). There is plainly no public right of access to those parts of the buildings concerned.

There was considerable discussion before me as to the relationship between the definition of "building" and of "advertisement", as they appear in Section 277(1) of the Act of 1997. I have reached the view that the submission of counsel for the petitioners, to the effect that those definitions are not mutually exclusive, is correct. It appears to me, on the basis of the very wide terms of the definition of "advertisement", that at least certain elements in that definition may also properly be regarded as "buildings".

The considerable discussion of the terms of the Control of Advertisements (Scotland) Regulations 1984, which occurred in the hearing before me, while not of direct relevance to the issue in controversy, appears to me to have this significance. If I were to reach the conclusion that the provisions of those Regulations afforded no opportunity for control of the petitioners' advertisements, I might have been driven to endeavour to take a different view of the terms of Section 187. However, it appears to me that that is not the case. I consider that the terms of Regulation 3(2) are such as to afford to the respondents the power to control the display of advertisements such as those of the petitioners. That Regulation provides inter alia that the display of an advertisement within a building so as to be visible from outside that building is to be subject to the Regulations if the advertisement is (a) an illuminated advertisement or (c) an advertisement any part of which is within a distance of one metre from any external door, window, or other opening through which the advertisement is visible from outside the building. Leaving aside the issue of illumination, which I understood to be involved in certain of the petitioners' display cabinets, it appears to me plain that the terms of paragraph (c) would apply in the circumstances of this case, thus rendering the situation one which is subject to the control of the Regulations. As regards Regulation 3(1), it appears to me that it also is capable of rendering the petitioners' operations the subject of control under the Regulations. That would be the position on the view that the petitioners' advertisements were displayed on "sites", as defined in Regulation 2(1) which include "any building" and that the application of the Regulations is not excluded by the terms of paragraphs (c) or (d) of Regulation 3(1). As regards paragraph (d), it appears to me that there is no possible basis for its operation in the circumstances of this case. As regards paragraph (c) I do not see how it could be successfully contended that the petitioners' advertisements formed "part of the fabric of, a building ...". Plainly the glazed display cabinets might be said to form part of the fabric of the building, but the advertisements themselves, in my opinion, are not in a similar situation, simply having been inserted within the cabinets.

I am confirmed in the conclusion which I have reached by a consideration of the background to the enactment of Section 187 of the Act of 1997 and of the Regulations of 1984. It appears to me quite plain from the background material, to which reference was made without objection, that the intention of Parliament in enacting Section 187 and its predecessor was to provide a summary remedy against the evil of "fly-posting", although, of course, that expression is not used in the section itself. Whatever may be the precise limits of "fly-posting", It appears to me quite clear that the petitioners' operations cannot properly be so described. I understood counsel for the respondent, in effect, to accept that view. Against that background, it does not seem to me at all surprising that Parliament has enacted the remedy provided by Section 187, which is plainly of a summary nature and which involves no right of appeal by the person affected by it. However, where one is dealing with an operation such as that of the petitioners, in which significant amounts of money have been invested, in my opinion, it would be very surprising if Parliament had intended that Section 187 should apply. It appears to me that it would be highly objectionable for Parliament to have enacted a means whereby the commercial interests of an individual might be destroyed, simply on the basis of the expression of an opinion by a planning authority in terms of sub-section (3)(a), with no machinery for appeal or the payment of compensation.

I should make clear that I am unable to agree with the point made by counsel for the petitioners relating to powers of entry under Section 187. He submitted that there was no power of entry under that section which could operate where an advertisement was displayed within a structure which was part of a building. I find myself unable to accept that argument having regard to the provisions of sub-section (6) and the definition of "land", which includes "any building", to be found in Section 277(1) of the Act.

Although counsel for the petitioners indicated that the ground of action stated in paragraph 5(b) of the petition was a separate matter from that contained in paragraph (a), as the matter was presented, it did not appear to me that a separate argument was advanced. He presented the matter by saying that the lack of a need for specification in a Section 187 notice demonstrated the limited ambit of the Section 187 procedure. With that contention I would certainly agree. It appears to me that there is an obvious distinction between the terms of Section 187, where there is no provision that the notice should contain any more than is set forth in sub-section (3)(a) and (b) and the terms of Regulation 24(3) of the Regulations of 1984.

In the whole circumstances I shall sustain plea-in-law 1 for the petitioners and grant decree of declarator, reduction and interdict as sought in paragraph 4 of the petition and I shall repel pleas-in-law 1, 2 and 3 for the respondents.