Clear Channel UK Ltd., R (on the application of) v London Borough of Southwark

Whether deemed consent exists for advertisement hoardings is determined by the statutory scheme and the factual character of the display. A material dispute about the existence of consent is a precedent fact which the court may determine for itself, particularly where enforcement carries compulsory removal without compensation and no appeal is available.

Under Class 14 of Schedule 3 to the Town and Country Planning (Control of Advertisements) Regulations 1992, continuous use means continuous use for displaying advertisements in accordance with the expired express consent. Unauthorised replacement hoardings cannot preserve or revive deemed consent. Lawful use of a small part of a site does not maintain consent over substantially altered parts. A local authority is not estopped from exercising statutory powers by an earlier letter where the statutory conditions are not met.

The claimant sought judicial review of Southwark’s decision to issue eight notices under section 11 of the London Local Authorities Act 1995, requiring removal of advertisement hoardings at St George’s Circus.

The claimant argued that the hoardings had deemed consent under Class 14 of Schedule 3 to the Town and Country Planning (Control of Advertisements) Regulations 1992. It also argued that, even if the existing hoardings differed substantially from those covered by a 1991 express consent, it retained a right to revert to the earlier configuration. A further argument relied on a 1998 council letter and legitimate expectation.

The central issues were whether the existing hoardings were substantially different from those authorised in 1991 and whether Class 14 preserved any right to revert to the authorised form.

1. Disposition. The notices concerning hoardings B to H were upheld. The notice concerning hoarding A was quashed by agreement. The claimant’s alternative arguments failed.
2. Section 11 of the London Local Authorities Act 1995 cannot be used where deemed or express consent exists. Whether such consent exists is a precedent fact. Where there is a material dispute, the court may resolve the issue for itself, applying the approach identified in R (on the application of Maiden Outdoor Advertising Limited) v Lambeth London Borough [2003] EWHC 1224 (Admin) and Khawaja v Secretary of State for the Home Department [1984] AC 74.
3. The changes to hoardings B to H were substantial matters of fact and degree. Their dimensions, positions, height above the ground, number and visual prominence differed materially from the 1991 consent. They therefore fell outside the deemed consent.
4. Class 14(2) requires the site to have been continually used for displaying advertisements in accordance with the expired express consent. It permits flexibility, such as removing and later restoring part of an authorised display. It does not permit an operator to substitute unauthorised hoardings and then rely on that unauthorised use to revive deemed consent.
5. The authorities concerning the meaning of “site”, including Scotts Restaurants Plc v Westminster City Council [1993] JPL B34 and Barking and Dagenham London Borough Council v Mills and Allen Ltd [1997] 3 PLR 1, establish that the relevant site is a matter of fact. On the facts, lawful use of hoarding A, occupying about eight per cent of the frontage, could not preserve deemed consent over the substantially altered remainder.
6. The claimant’s legitimate-expectation argument was impermissible as an attempt to prevent the authority exercising statutory powers, applying R (on the application of Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348. Costs were awarded to the defendant, subject to summary assessment, and permission to appeal was granted on the Class 14 issue.

The judgment records that permission to apply for judicial review was granted by Sir Michael Harrison after an oral hearing on 25 January 2006. The court granted permission to appeal to the Court of Appeal on the meaning of Class 14 and the right to revert to the earlier authorised hoardings.