|
OUTER
HOUSE, COURT OF SESSION
[2008] CSOH 57
|
|
|
XA174/06
|
OPINION OF LORD BRODIE
in the Appeal of
SITE PROJECTS LIMITED
Appellants
against
A decision of
DOUGLAS G HOPE, a Reporter appointed by the SCOTTISH MINISTERS dated 6 September 2006
ญญญญญญญญญญญญญญญญญ________________
|
|
|
|
Appellant: Steven L Stuart; HBJ Gateley Wareing (Scotland) LLP,
Respondents: Springham; M Sinclair, Office of the Solicitor to
the Scottish Executive
2 April 2008
Introduction
[1] This
is an appeal under section 239 of the Town and Country Planning (Scotland)
Act 1997 against a decision of a Reporter (Mr Douglas G Hope)
appointed by the Scottish Ministers to determine an appeal, in terms of regulation 25
of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984
("the Regulations"), against an enforcement notice served by Glasgow City
Council on, inter alia, the
Appellants and dated 7 April 2006. The
Appellants are Site Projects Limited, a company incorporated under the
Companies Acts and having a place of business at Abercorn Street, Newton,
Broxburn EH52 6PZ. They are the
owners of subjects on which are erected a number of advertising hoardings,
opposite Duke Street on Shettleston
Road, Glasgow ("the site"). The Respondents are the Scottish Ministers. At the hearing before me the Appellants were
represented by Mr Steven Stuart, Advocate.
The Respondents were represented by Ms Kay Springham, Advocate.
Control of the display of advertisements
[2] The
display of advertisements in Scotland
is subject to control by regulations made in terms of powers currently
conferred by sections 182 and 183 of the 1997 Act and formerly
conferred by section 61 of the Town and Country Planning (Scotland)
Act 1972. In terms of regulation 5
of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984
no advertisement may be displayed without consent granted either by the
planning authority or by the Scottish Ministers on an application in that
behalf (referred to in the Regulations as "express consent") or deemed to be granted
in accordance with Part IV of the Regulations (referred to in the Regulations
as "deemed consent"). However, if the
display of the advertisement is in accordance with the Regulations, planning
permission for such development as is involved in the display shall be deemed
to be granted and no further application shall be necessary under Part III
of the 1997 Act (1997 Act, section 184). The definition of "advertisement" in regulation 2(1)
of the Regulations is very extensive. It
includes
"any hoarding or
similar structure ...used, or designed or adapted principally for use, for the
display of advertisements and references to the display of advertisements shall
be construed accordingly".
[3] The
Regulations confer a number of powers on local planning authorities with a view
to the exercise of control on the display of advertisements additional to the
power, conferred by regulation 17, to grant express consent. If it appears to an authority that it is
expedient that any express consent should be revoked or modified, the authority
may by order revoke or modify the consent in terms of regulation 22. If the authority considers it expedient to do
so to remedy a substantial injury to the amenity of the locality or a danger to
members of the public, it may serve a notice requiring the discontinuance of a
display for which there is deemed consent in terms of regulation 14 of the
Regulations. In the event that it
appears to a planning authority that any advertisement has been displayed
without a consent required by the Regulations or that a condition or limitation
subject to which such consent was granted or was deemed to be granted has not
been complied with, then the planning authority may serve an enforcement notice
in terms of regulation 24. Decisions
of the planning authority are subject to appeal to the Scottish Ministers:
refusals of express consent and service of a discontinuance notice in terms of regulation 21,
service of an enforcement notice, in terms of regulation 25.
Relevant site history
[4] The
site had been subject of an instance of the exercise of control over the
display of advertisements prior to the enforcement notice of 7 April 2006. On 20 December
1989 the City of Glasgow District Council
served a discontinuance notice in respect of the site in terms of regulation 21
of the Regulations. As at that date the
site comprised six 48 panel hoardings.
They were not illuminated. The
discontinuance notice was subject to an appeal to the Secretary of State for Scotland. In terms of regulation 21(8) the
Secretary of State is given power on determining an appeal against a
discontinuance notice to give such direction as may be necessary for giving
effect to his determination including, where appropriate, directions for
quashing the discontinuance notice or for varying the terms of the
discontinuance notice in favour of the appellant. The reporter appointed to determine this
appeal exercised these regulation 21(8) powers, as appears from his
decision letter of 2 August 1990
(ref P/ADD/SL/50). Paragraph 17 of
the decision letter of 2 August
1990 included this:
"I hereby
sustain the appeal and grant consent for the continued display of the hoardings
for a further period of 2 years from the date of this letter but subject
to the condition that the forecourt to the display is landscaped to the
satisfaction of the planning authority."
No other express consent has been
granted by any relevant authority in respect of the site.
[5] Regard
must be had, however, to regulation 19 of the Regulations. This is in the following terms:
"19(1) Except where the planning authority when
granting consent impose a condition to the contrary or where renewal of consent
is applied for and refused, advertisements displayed with express consent may
on the expiry of their term continue to be displayed subject to service by the
planning authority of a discontinuance notice but without prejudice to the
exercise of any other power in these regulations to require the removal of
such advertisements.
(2) Where under paragraph (1) of this regulation
advertisements continue to be displayed after the expiry of express consent,
consent shall be deemed to be granted in respect of the continuance of such
display, subject to the like conditions as those to which the express consent
immediately preceding it was subject and, unless previously brought to an end,
shall expire when the site ceases to be used for the display of such
advertisements."
[6] Subsequent
to the decision letter of 2 August
1990 two adjacent 48 panel hoardings were amalgamated into one
96 panel hoarding. A further
externally illuminated 48 panel hoarding was added to the site in 1991. At the same time external illumination was
added to the other five hoardings (that is the one 96 panel hoarding and
the four 48 panel hoardings).
The appeal to the Scottish Ministers against the enforcement notice
[7] This
appeal is concerned with the enforcement notice dated 7 April 2006, served by Glasgow City Council
on the Appellants in terms of regulation 24, which was then the subject of
an appeal to a Reporter appointed by the Scottish Ministers in terms of regulation 25. In addition to the Appellants, the enforcement
notice was also served on J C Decaux Limited, described in the notice
as occupiers of the site, and SMG Primesight Advertising Limited
("Primesight"), described in the notice as lessees of the site. The enforcement notice stated that a breach
of advertisement control had taken place on the site, consisting of the
"unauthorised display of five x 48 sheet and one x 96 sheet
externally illuminated advertising hoardings".
The steps required to be taken for the purpose of remedying the breach
of advertisement control were specified as "cease the display, remove the
structures and submit a scheme of landscaping to the Planning Authority for
consideration and implementation". No
alternative steps were specified.
[8] I
do not understand that any action was immediately taken in response to the
enforcement notice by the Appellants. However,
an appeal was lodged against the notice by Mr James Barron of the Barron
Planning Consultancy, acting on behalf of Primesight, in terms of letter dated 16 May 2006 ("the Barron
submission"). A copy of the Barron
submission is number 7/3 of process.
[9] The
grounds upon which an enforcement notice may be appealed to the Scottish
Ministers are set out in regulation 25 (1). The Barron submission was construed by
Glasgow City Council and by the Reporter as founding on the grounds provided by
paragraph (a) and paragraph (d) of regulation 25(1). These paragraphs are in the following terms:
"(a) that the matters alleged in the notice do
not constitute a display of an advertisement without a consent required by
these regulations or a failure to comply with any condition or limitation
subject to which any such consent was granted or deemed to be granted;
...
(d) that the steps required by the notice to
be taken exceed what is necessary for the purpose identified under regulation 24(3)."
[10] Regulation 24(3) is in these terms:
"An enforcement
notice shall specify the advertisement which is alleged to have been displayed
without consent or the matters in respect of which it is alleged that any
condition or limitation has not been complied with, and may specify steps that
shall be taken within a given period to restore the land to its condition
before the display was begun or to secure compliance with the condition or
limitation; but may in addition specify, as an alternative, steps required to
be taken to bring the display to a condition acceptable to the planning
authority having regard to the provisions of these regulations; and in
particular any such notice may for this purpose require the demolition or
alteration of any buildings or works, the discontinuance of any use of land or
the carrying out on land of any building or other operation."
[11] Accordingly, the "purpose identified under regulation 24(3)"
which is referred to in the ground of appeal provided by regulation 25(1)(d)
is
"to restore the
land to its condition before the display was begun or to secure compliance with
the condition or limitation [which has not been complied with]"
or, where alternative steps are
specified (which was not done in this case),
"to bring the
display to a condition acceptable to the planning authority having regard to
the provisions of [the Regulations]".
[12] As appears from his decision letter dated 6 September 2006, the Reporter found that
both ground (a) and ground (d) failed. It is the decision by the Reporter to dismiss
the appeal at the instance of Primesight, as presented in the Barron
submission, and uphold the enforcement notice of 7 April 2006 that is the
subject of appeal to this court under reference to the familiar considerations
summarised in Wordie Property Co Ltd v Secretary of State for Scotland 1984
SLT 345 at 347.
Submissions of parties
The
submissions for the Appellant
[13] Mr Stuart submitted that the Reporter had erred in law. An enforcement notice can only be effective
in respect of something that has neither express nor deemed consent: Mansi v Elstree Rural District Council (1965) 16 P & CR 153. What the Reporter should have done was to
consider to what extent what was on site in 2006 when the enforcement
notice was served enjoyed the benefit of deemed consent by virtue of the expired
express consent granted on 2 August
1990 and continued display after that, as provided by regulation 19. Determining this was a matter of fact and
degree. To the extent that it did enjoy
deemed consent, there was no basis for enforcement (whatever might be the case
in relation to discontinuance). The
Reporter should have had regard to how the 96 panel hoarding came into
being. Because he had not done this and
because he had failed to consider to what extent what was on site in 2006
had the benefit of deemed consent, he was not in a position to consider what
steps were necessary to restore the land to its condition before the display
was begun. All that an enforcement
notice could require was the restoration of a site to its state prior to an
"un-consented to" display of an advertisement.
The Reporter had not addressed regulation 19(2) in a proper way. Curiously, he did not refer to regulation 19
in the context of his consideration of the regulation 25(1)(a) ground of
appeal but in any event he had misapplied the provision. He had looked at changes in the way in which
the site had been used, rather than considering whether advertisements which
had been subject to express consent had been continued to be displayed. Reference was made to R (on the application of Clear Channel UK Ltd) v Southwark London Borough Council [2007]
JPL 927 and R (on the application of
Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council [2004]
JPL 820. The Reporter referred to
considerations of amenity in paragraph 17 of his decision letter and to
public safety in paragraph 18 of the letter. These references and what appeared in
paragraph 14 of the decision letter where the Reporter appears to have dealt
with the regulation 25(1)(a) ground simply under reference to
Schedule 4 to the Regulations and before looking at regulation 19,
suggested a misunderstanding on the part of the Reporter of what it was
Primesight had been arguing for.
[14] Mr Stuart separately submitted that the Reporter erred in
upholding the requirement in the enforcement notice that a scheme of
landscaping be submitted. That was not
necessary for a purpose identified by regulation 24(3). There was no evidence to suggest that this
was a step required to restore the land to its condition prior to the
advertising hoardings were displayed. Mr Stuart
further submitted that, in any event the Reporter had taken into account an
irrelevant consideration in having regard to road safety considerations. Reference was made to regulation 4. There was, in any event, no evidence before
the Reporter justifying a requirement based on road safety considerations.
[15] Mr Stuart moved me to allow the appeal, quash the decision
in terms of section 239(5) of the 1997 Act and remit to the Reporter
for re-consideration.
The
submissions for the Respondents
[16] Miss Springham began by emphasising that in the written
grounds of appeal to this court whereas it was said that the Reporter had erred
in law in refusing the appeal against the enforcement notice under regulation 25(1)(d),
there was no equivalent reference to regulation 25(1)(a). Thus, there was no challenge to the
Reporter's finding that the display of advertisements had not been consented to. Mr Stuart's submission that the Reporter
should have considered to what extent what was displayed in 2006 had the
benefit of consent with a view to determining what was required to restore the
land to its condition before the display was to conflate two separate steps
identified in regulation 25(1)(a) and (d). The Reporter in any event had assessed what
was on the site in 2006 and compared it to what was consented to in 1990. There was no need for him to do more because
he had determined that there had been an unauthorised display since 1991
and accordingly this was not a case where the matters alleged in the
enforcement notice did not constitute a display of an advertisement without
consent. The approach now argued for by Mr Stuart:
that each hoarding had to be considered separately had not been put forward to
the Reporter in the Barron submission. The
Reporter's consideration of amenity and public safety was to be understood in
the light of terms of regulation 24(3) which provided that the local
authority might specify alternative steps (that is, alternative to restoration
of the land to its condition before the display was begun) to bring the display
to a condition acceptable to the planning authority having regard to the
provisions of the Regulations. The
Reporter was entitled to consider whether there were other steps which might be
taken to remedy a breach of advertisement control. Although regulation 25(1)(d) referred to
"the purpose" identified under regulation 24(3),
when one looked at regulation 24(3) there were in fact three purposes: restoration
of the land to its condition before the display was begun (which, Miss Springham
submitted, meant before there had been any display whatsoever), securing
compliance with a condition, and making the display acceptable to the planning
authority. Amenity and public safety
were clearly relevant to the third of these purposes. What one finds the Reporter doing in
paragraphs 15 to 18 of the decision letter is considering the whole
range of options available to the planning authority. If this is regarded as being a superfluous
exercise it does not follow that it leads to the Reporter's determination being
wrong. There was little or nothing that
could be taken from the English decisions which had been referred to by Mr Stuart
given the differences as to the facts and the relevant legislation.
[17] As far as the requirement in the enforcement notice that a
scheme of landscaping be submitted, Miss Springham emphasised what it was
the Council had required: that the parties on whom the notice had been served
submit a scheme. It was for them to
determine what that might comprise. Nothing
had been submitted. As matters stood it
simply could not be determined whether a degree of landscaping might be
necessary to restore the land to its condition before the display was begun. As far as road safety considerations were
concerned, Miss Springham drew attention to the enumerated reasons for
service which the Council had included in the enforcement notice. The Reporter was demonstrating by the terms
of the decision letter that he had taken them into account. It would be curious if when having to decide
whether an application for express consent for an advertisement had been
properly refused the Reporter could take public safety into account but he
could not do so when the issue was whether an advertisement could be removed.
Motion to amend the appeal
[18] An appeal such as the present must be made in terms of
Form 41.19. It must state, in brief
numbered propositions, the grounds of appeal.
On the second day of the hearing at the end of what Miss Springham
had had to say, Mr Stuart moved to amend his grounds of appeal by
referring expressly to the Reporter having erred in law in refusing the appeal
to him under regulation 25(1)(a) as well as regulation 25(1)(d). Miss Springham opposed the motion on the
grounds that it was incompetent and, in any event, that it came too late. An appeal had to be lodged within 6 weeks
of the decision appealed against. It
would be to elide that requirement if an additional ground could be added by
way of amendment outwith that period. In
any event the motion came too late in the hearing. Miss Springham had articulated the
Respondents' position on the first day of the hearing. It was only after she had concluded her
submissions on the second day that Mr Stuart had made his motion. There would be prejudice to the Respondents
in that the submissions on their behalf had been completed.
[19] In my opinion the motion was competent but, in the
circumstances, I considered it appropriate to refuse it. I agreed with Miss Springham that it
came too late in the hearing.
Discussion
[20] The issue before me is whether in refusing the appeal the
Reporter acted unlawfully, in one or other of the ways identified by the Lord
President in Wordie Property Co Ltd v
Secretary of State for Scotland supra.
That has to be determined by consideration of the Reporter's decision
letter in the light of the relevant legislation. A decision letter is addressed to the parties
to the appeal. As Lord Brown of
Eaton-under-Heywood observed in a passage in his opinion in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953,
which was cited with approval by the Lord Justice-Clerk in Moray Council v Scottish
Ministers 2006 SC 691 at 699:
"Decision letters
must be read in a straightforward manner, recognising that they are addressed
to parties well aware of the issues involved and the arguments advanced."
However, difficulty may arise when
the decision letter addresses itself to a party whose grasp of the relevant
issues, as judged by its submissions, is less than secure. By responding to a party on its own terms the
decision maker may be drawn towards irrelevant considerations and away from
relevant ones. This may be what happened
in this case.
[21] Looking to what is said in paragraph 14 of the decision
letter; Mr Stuart suggested that the Reporter had misunderstood what it
was that Primesight had been arguing for.
Mr Stuart pointed to the curiosity that the decision letter only
refers to regulation 19, which provides for deemed consent in certain
circumstances, at paragraph 16, a point in the decision letter after the regulation 25(1)(a)
ground of appeal (not constituting a display without consent) had been
determined against Primesight. Looking
to what is said by the Reporter about amenity in paragraph 17 and about
road safety in paragraph 18 of the decision letter, Mr Stuart said
that the Reporter has had regard to irrelevant considerations.
[22] I share Mr Stuart's difficulty over the point at which regulation 19
is introduced into the decision letter but, leaving aside for the moment what
is to be made of paragraphs 14, 16, 17 and 18, in fairness to the
Reporter, it seems to me that in these paragraphs the Reporter was attempting
to address the Barron submission. The
Barron submission is not entirely easy to follow. It has the look of having taken points from
the opinion of Collins J in R (on
the application of Maiden Outdoor
Advertising Ltd) v Lambeth London Borough Council supra without having focused
them in what was a different factual and legislative context. However, the Barron submission appeared to
argue that, because there had never been a condition attached to a consent to
the effect that there could or could not be illumination, then consent for
display of an advertisement was to be treated as consent for display of an
illuminated advertisement. This argument
seems to have been based upon Maiden
Outdoor without appreciating that that decision turned on the definition of
"advertisement" in the (English) Town and Country Planning Act 1990 which
included the words "illuminated or not".
These words do not appear in the definition of "advertisement" in the
Regulations. The matter is underlined by
the Regulations containing a separate definition of "illuminated
advertisement". I take it that that is
what the Reporter was responding to at paragraph 14 of the decision letter. He refers to Class VI of Schedule 4
to the Regulations (which require to be read with regulation 10) because
it is only there where there is provision for deemed consent for illumination
of advertisements.
[23] Turning to Mr Stuart's criticisms about what appears in
paragraphs 17 and 18 of the decision letter, power to serve an
enforcement notice is conferred by regulation 24(1). Power is conferred "where it appears to a
planning authority that any advertisement has been displayed without consent". What the planning authority can require by
way of enforcement notice is set out in regulation 24(3) and that is to
"specify steps required to be taken to restore the land to its condition before
the display was begun." Hence the grounds of appeal set out in regulation 25(1)(a)
and regulation 25(1)(d). Regulation 4(1)
provides that the powers conferred the Regulations with respect to the
grant and refusal of consent, revocation or modification of consent and
discontinuance of display of advertisements with deemed consent, shall be
exercisable only in the interests of amenity and public safety. However, nothing is said in regulation 4(1)
about the powers conferred with respect to enforcement notices. Amenity as such and public safety are not
relevant to the making of or the appealing against an enforcement notice. I agree with Mr Stuart about that
(although, following R (on the
application of Maiden Outdoor
Advertising Ltd) v Lambeth London
Borough Council supra, I can see that amenity and public safety may be
relevant if what is in issue is the materiality of what is said to be a failure
to comply with an express consent). The
point was made by the Council in its Appeal Observations (number 7/2 of
process). However, that was not the
position taken in the Barron submission.
The Barron submission began by stating that:
"Much of the
evidence in relation to this site have (sic) already been addressed in the
previous appeal against the refusal of the Council to grant Express Consent for
a reduced display at the site (SEIRU P/ADA/260/501)".
Amenity and public safety would
have been relevant to such an appeal and it appears that the author of the
Barron submission thought that the same was so in relation to an appeal against
an enforcement notice. The Barron
submission included a section headed "Amenity & Policy Issues" and a section
headed "Highway Issues". It concluded
with a paragraph in these terms:
"It is our
contention that the display is lawful and benefits from deemed consent. In the circumstances it is not within the
council's remit to seek removal by way of Enforcement Notice. The Council have failed to show that the proposal
is unlawful or in any way affects amenity or highway safety and in view of the
lack of substantive argument to the contrary we would request that our
submissions be accepted and this appeal allowed."
[24] It appears to me that the Reporter was drawn into amenity and
public safety issues by what was addressed to him on behalf of Primesight. Miss Springham, however, suggested that
there was an alternative explanation for what I took her to accept would
otherwise have been an irrelevant excursion.
She referred to regulation 24(3).
She pointed to the discretionary power of the planning authority to
specify, in addition to "steps that shall be taken ... to restore the land to its
condition before the display was begun", "steps required to be taken to bring
the display to a condition acceptable to the planning authority having regard
to the provisions of these regulations".
The alternative would have to be formulated having regard to
considerations of amenity and public safety.
In the light of the planning authority's power to put forward an
alternative to restoration of the land to its condition before the display, the
Reporter had been entitled to apply his mind to amenity and public safety, as
part of his consideration of the regulation 25(1)(d) ground (whether the
steps required by the notice exceeded what was necessary). I consider Miss Springham's suggestion
as to what the Reporter was doing to be ingenious. I do not think it to be correct. The Council had not specified an alternative. Had it done so then the Reporter might have
been able to express a view as to whether what was proposed was within the
range of what a reasonable local authority might regard as acceptable but when
Glasgow City Council had not expressed any view as to what steps might bring
the display to a condition acceptable to it, I simply do not understand what
the Reporter could say on the subject. He
no doubt has planning expertise but that does not allow him to express a
sensible view on what might or might not be acceptable to a particular planning
authority. Importantly, the Reporter
does not explain in his decision letter that it is only with an eye to the
non-existent alternative that he is expressing views on the desirability of
removal of the hoardings from the perspectives of amenity and road safety. Rather, for all that appears to the contrary
in paragraphs 17 and 18, it would seem that the Reporter considered
that the necessity of the steps specified in the enforcement notice had to be
determined by reference to considerations of amenity and public safety. That would be a misdirection. It is true that at paragraph 15 of the
decision letter the Reporter narrates an argument (the source of which I have
not found in the Barron submission) to the effect that it is not necessary to
remove the hoardings in order to remedy the breach of control constituted by
the illumination. All that was required
was removal of the illumination. I do
not see the Reporter to have dealt with that argument but, more important for
what I am presently considering, I do not take from what appears in paragraph 15
that the Reporter had correctly directed himself to what was the test to be
applied in considering the regulation 25(1)(d) ground of appeal.
[25] I am accordingly satisfied that the Reporter made an error of
law in relation to the ground 25(1)(d) appeal. However, before quashing the decision I have
also to be satisfied that the error was material. At one level the error was clearly material. What the Reporter was required to do by the Regulations was
to determine whether the steps required by the notice to be taken exceeded what
was necessary to restore the land to its condition before the display was begun. What he did was something quite different and
that was to determine that removal of the advertisements would improve the
visual amenities of the area and reduce potential road safety hazards. However, I consider that I must consider the
argument advanced by Miss Springham to the effect that once it was
accepted that the display did not have the benefit of consent then it followed
that the planning authority was entitled to order the display to cease and
remove every structure associated with the display of advertisements. That, submitted Miss Springham, is the
natural meaning of "restore the land to its condition before the display was
begun". Miss Springham did not
concede that the Reporter had made an error of law and her argument was not
made in the context of materiality, but it would appear to me that if she is
correct in her construction of regulation 24(3) then the Reporter's
observations about amenity and road safety could simply be disregarded as
superfluous because once it was accepted that the display did not have consent
the Reporter had no alternative but to refuse the regulation 25(1)(d)
ground of appeal.
[26] I do not consider that Miss Springham's construction is
correct. There is no question but the
enforcement notice can require the recipient of the notice to "restore the
land" to its condition before an earlier point in time. The issue is: at what point in time? I understood Miss Springham to argue for
that point of time which was before any advertisement whatsoever being
displayed on the land. That would mean
that where an advertisement had been displayed which had the benefit of either
express or deemed consent and was then altered in some material way, let us say
by the addition of illumination to a hoarding, then an enforcement notice could
require the removal of everything, or at least everything by way of
advertisement, necessary for restoration of the land to its condition before
any display of advertisements, even display with consent. Disagreeing with Miss Springham, I do
not see that as the natural meaning of "condition before the display was begun" (emphasis added). I see "the
display" as a referring to what had "been displayed without consent". It is restoration to that condition which can
lawfully be required by an enforcement notice.
That would be consistent with the position where a condition or
limitation has not been complied with. There
it is clear that where a condition or limitation has not been complied with the
power is limited to securing compliance.
It does not go beyond that. I
would see requiring restoration to the condition before display without consent
to be the equivalent of securing compliance with a condition or limitation.
[27] If I am correct in my construction, even where it is accepted
that there has been display of an advertisement without consent and that
therefore an enforcement notice can lawfully be served in respect of that
advertisement, a question arises as to what that enforcement notice can require. In the first alternative provided by regulation 24(3)
that does not fall to be determined by reference to amenity or public safety
but, rather, by reference to what is required to restore the land to its
condition before the display without consent was begun.
[28] I do not propose to address the arguments relating to the
requirement of the enforcement notice to submit a scheme of landscaping in any
detail beyond indicating that I was sympathetic to Miss Springham's point
that it cannot be said that landscaping might not be required to restore the
condition of the land to its condition prior to the display of an advertisement
without consent.
[29] I shall accordingly allow the appeal, quash the decision in
terms of section 239(5) of the 1997 Act and remit to the Reporter for
re-consideration. I shall reserve all
questions of expenses. For the avoidance
of doubt, I have allowed this appeal upon the basis that I consider that the
Reporter erred in law in his consideration of the regulation 25(1)(d)
ground of appeal. However, I intend the
effect of my decision to be to quash the Reporter's decision simpliciter. The appeal will therefore require to be
reconsidered by the Reporter under reference to all grounds that are put before
him.
