Royal Borough Of Kensington & Chelsea v Harvey Nichols & Ors

An advertisement printed on a detachable PVC safety screen attached to scaffolding is not incorporated in the fabric of a building for the purposes of Class D of Schedule 2 to the Town and Country Planning (Control of Advertisements) Regulations 1992. Fabric ordinarily denotes the essential structure of a building and requires a degree of permanence. A scaffold may fall within an extended statutory meaning of building without possessing fabric in that sense. The display of an advertisement can constitute a material change of use under the Town and Country Planning Act 1990, even where the scaffolding itself benefits from permitted development rights. A continuing offence may be restrained by injunction, including a mandatory injunction requiring removal of the advertisement.

The Council sought injunctions requiring the defendants to comply with the Town and Country Planning (Control of Advertisements) Regulations 1992 and to remove a large Versace advertisement printed as part of a PVC screen attached to scaffolding around a department store. The deputy High Court judge held that the advertisement was unauthorised and granted the injunctions.

The second defendant appealed, arguing that the scaffold was a building, that the screen formed part of its fabric, and that the advertisement therefore benefited from deemed consent. It also challenged the jurisdiction to grant mandatory relief and the exercise of discretion. The central issue was whether the advertisement fell within Class D of Schedule 2.

1. Appeal dismissed. The advertisement was not incorporated in the fabric of the scaffold and was therefore displayed without the required consent.
2. Lord Justice Dyson held that fabric has two related elements: it comprises the essential structure of the building and has a degree of permanence. Temporary fixtures and readily removable components do not ordinarily form part of the fabric. Even assuming that the scaffold itself could be a building, its detachable and replaceable screen lacked the necessary permanence.
3. Lord Justice Pill agreed in the result and treated the issue as one of statutory construction. Class D contemplates an advertisement that is an integral and permanent part of the body of a building. An advertisement digitally imprinted on a PVC screen tied to scaffolding was not permanently integrated into the scaffold. The possible policy value of the advertisement was irrelevant.
4. The court did not need to decide whether the scaffold was a building under section 336(1) of the Town and Country Planning Act 1990. The advertisement nevertheless involved a material change of use under section 55(5), and the scaffold’s permitted development status under the Town and Country Planning (General Permitted Development) Order 1995 did not authorise the advertisement.
5. An offence under section 224 of the 1990 Act is continuing in nature. The general power under section 222 of the Local Government Act 1972, and in any event section 187B of the 1990 Act, permitted injunctive relief. Once the unlawful display was established, the case for a mandatory injunction was overwhelming. Permission to appeal on the additional grounds was refused. The appeal was dismissed with costs summarily assessed at £3,000, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal from the decision of Mr Nigel Baker QC, sitting as a deputy High Court judge. Appeal dismissed; permission to appeal to the House of Lords refused.