Wandsworth Borough Council v South Western Magistrates' Court & Anor

Deemed consent under Class 13 of the Town and Country Planning (Control of Advertisements) Regulations 1992 requires the site to have been used continually for displaying an advertisement on the relevant date. A sign does not remain an advertisement merely because it remains visible. The court must consider all the circumstances, including whether it is still employed for advertising purposes and whether the site is being used for display.

Where there has been a substantial alteration in the manner of use, the question is essentially factual. It is enough that the alteration is capable of affecting amenity or public safety. Magistrates should not decide whether the alteration actually has an adverse effect, since those planning judgments belong principally to the local planning authority.

Wandsworth Borough Council appealed by way of case stated against the decision of District Judge Bayne at the South Western Magistrates' Court on 3 October 2006. The district judge had acquitted Clear Channel UK Ltd of displaying advertisements without consent, contrary to section 224(3) of the Town and Country Planning Act 1990.

The site contained a faded painted wall sign advertising newspapers which had ceased publication decades earlier. Clear Channel later installed an illuminated scrolling advertisement and gantry. The central issues were whether the old sign remained an advertisement and whether the site had been continually used for displaying advertisements under Class 13 of Schedule 3 to the Regulations.

1. The appeal was allowed. The case was remitted to the district judge with a direction to convict Clear Channel UK Ltd.

2. Under section 336(1) of the Town and Country Planning Act 1990, words painted on a wall may be an advertisement, but they must also be employed wholly or partly for advertising, announcement or direction. Whether that requirement is met is ordinarily a question of fact for the magistrates.

3. The proposition that an advertisement remains an advertisement merely because it remains visible was rejected. The court must consider the relevant circumstances in the round. A sign may fade, become dilapidated, or advertise a discontinued product and still remain an advertisement, but passage of time and changed circumstances may cause it to cease being employed for advertising purposes.

4. The wall was not being used for displaying advertisements on 1 April 1974. The newspapers had ceased publication, the sign had not been maintained, and the undisputed evidence showed that the wall was serving only its structural function. Visibility of the faded lettering did not establish continuing use.

5. Alternatively, assuming that the wall was still being used for display in 1974, the 2001 installation was a substantial alteration in the manner of use. An illuminated scrolling hoarding displaying successive advertisements was materially different from a static, non-illuminated painted sign applied directly to the brickwork. The question was factual and had to be assessed by looking at the overall change, including the gantry where relevant.

6. Although advertisement control operates in the interests of amenity and public safety under section 220(1) of the Act and regulation 4(1)(a), magistrates need not decide whether the alteration actually caused adverse effects. It is sufficient that the alteration was capable of having such an effect. Questions concerning the planning merits were principally for the local planning authority or, on appeal, the Secretary of State.

7. The court explained that the observations of Collins J in R (on the application of Maiden Outdoor Advertising Limited) v Lambeth London Borough Council [2004] JPL 820 were made in the context of a challenge to enforcement action and did not require magistrates to determine amenity or public safety. The court left open whether a planning authority must expressly consider adverse effects when deciding whether there has been a substantial alteration.

• South Western Magistrates' Court: District Judge Bayne acquitted the interested party on 3 October 2006, holding that Class 13 deemed consent applied.
• High Court (Administrative Court): The appeal by case stated was allowed. The matter was remitted to the district judge with a direction to convict. The appellant was awarded assessed costs of £13,667.46, subject to correction of any mathematical error.