Maiden Outdoor Advertising Ltd., R (on the application of) v Lambeth

A local authority may use statutory powers to remove an advertisement hoarding only after establishing the statutory precedent fact that no express or deemed consent exists. Where that fact is materially disputed, the Administrative Court may determine it, including through procedures allowing factual evidence.

In construing advertisement consent, the court generally considers the consent and documents incorporated into it, not the underlying application. Illumination does not automatically terminate deemed consent under Class 13 of Schedule 3 to the Town and Country Planning (Control of Advertisements) Regulations 1992; the question is whether, on the particular site, it substantially alters the manner of use, having regard to amenity and public safety. A removable offending alteration may be corrected so that deemed consent continues.

The claimant challenged notices served by Lambeth London Borough Council under section 11 of the London Local Authorities Act 1995, requiring removal of an illuminated advertising hoarding at Coldharbour Lane, Brixton.

The hoarding had originally received express consent in 1956 for a limited period. It had remained on the site, and illumination had been added in 1989. The Council contended that the hoarding lacked express or deemed consent under Classes 13 and 14 of Schedule 3 to the Town and Country Planning (Control of Advertisements) Regulations 1992. The central issues were whether Class 14 applied, whether the illumination amounted to a substantial alteration under Class 13, and whether the Council had acted lawfully in deciding to serve the notices.

1. Precedent fact and procedure. The existence of express or deemed consent was a precedent fact required before section 11 could be used. Because the power permitted removal without compensation and provided no appeal, the court could resolve a material dispute about that fact. Judicial review was the appropriate procedure, with directions under the CPR permitting discovery and oral evidence where necessary. The authority had to consider all relevant material, including its own records and material supplied by the claimant, and decide on the balance of probabilities whether the statutory condition existed.
2. Class 14. The 1956 consent had to be construed from the consent itself and the plans expressly incorporated into it. The underlying application could not be used for that purpose. The consent did not impose a condition prohibiting illumination. The definition of advertisement in the Town and Country Planning Act 1990 included illuminated advertisements, and the addition of illumination therefore did not prevent the site from being continually used for the purpose of the consent. Class 14 applied.
3. Class 13. The question was whether illumination substantially altered the manner of use of the site, not whether the hoarding or its lighting equipment had changed. Illumination could constitute such an alteration, particularly where it affected amenity or public safety, but it did not do so automatically. The assessment was site-specific and had to be made in the statutory context. The Council had wrongly treated illumination as necessarily substantial.
4. Correction of an alteration. Even if the illumination amounted to a substantial alteration, removal of the offending illumination could restore the position under Class 13. The authority should consider that possibility before exercising the all-or-nothing removal power in section 11.
5. The section 11 notices were quashed. The related notices stood or fell with them. The claimant received its costs, including reserved interlocutory costs. Permission to appeal was refused.

This was a first-instance judicial review claim. The judgment refers to earlier interlocutory applications before Davis J and McCombe J, but gives no separate citation for them.