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

For deemed consent under regulation 6(1) of the Town and Country Planning (Control of Advertisements) Regulations 1992, an advertisement must first fall within the relevant class description. Conditions and limitations then restrict that class; they do not enlarge it. Class 14 did not authorise new hoardings where the consent had been granted for retention of hoardings already on the site. Similarity in size, design or appearance was immaterial. Deemed consent is assessed by reference to the display and facts at the relevant time. The court rejected a general right to revert to an earlier deemed consent after unauthorised alteration or replacement. The appeal was dismissed.

Clear Channel appealed from the Administrative Court’s decision, reported at [2006] EWHC 3325 (Admin), which rejected its challenge to notices issued by Southwark under section 11 of the London Local Authorities Act 1995. The notices required removal of advertising hoardings. Express consent granted in 1991 had covered the retention of seven hoardings, but the structures present in 2005 had been substantially altered and no longer enjoyed deemed consent under class 14.

The appeal was confined to whether the operator could revert to hoardings substantially similar to those covered by the expired consent, and whether that fallback position was a material consideration which the Council had to take into account before issuing the notices.

Appeal dismissed. The Court of Appeal upheld the result, although its reasoning differed in some respects from that of the judge below.

1. Regulation 6(1) of the Town and Country Planning (Control of Advertisements) Regulations 1992 grants deemed consent only for an advertisement falling within the relevant class description. The conditions and limitations attached to the class restrict advertisements which otherwise fall within it. They cannot bring within deemed consent an advertisement which does not satisfy the description.
2. Class 14 required the display to be an advertisement displayed with express consent after that consent had expired. The 1991 consent was for the retention of the existing display under regulation 13(2)(c). A new hoarding erected after expiry could not satisfy that requirement. It made no difference that the replacement was similar or identical in size, design or appearance.
3. The existence of deemed consent is assessed as a snapshot of the particular display at the relevant time. The court approved the useful reasoning in Maiden Outdoor Advertising Limited v Lambeth London Borough Council [2003] EWHC 1224 (Admin) that the class description must be considered before its limitations. It rejected, however, the description of later compliance as revival of consent or a right to revert.
4. The court indicated, without deciding the point, that replacement hoardings might fall within class 14 where consent had been granted for a specified site use or continuation of use, provided the relevant requirements were met. Any use outside the express consent during the intervening period could nevertheless defeat limitation (2) to class 14.
5. The existence of a fallback position would have been a material consideration if such a right had been established. On the facts, no such right existed, so the Council was not required to consider it before issuing the notices under section 11 of the London Local Authorities Act 1995.

1. Court of Appeal (Civil Division) dismissed the appeal on 13 December 2007.
2. High Court of Justice, Queen’s Bench Division, Administrative Court, His Honour Judge Gilbart QC, rejected the challenge to the section 11 notices and made the order appealed from on 8 December 2006: [2006] EWHC 3325 (Admin).