Blow Up Media Ltd UK Ltd, R (on the application of) v London Borough of Lambeth

A statutory power to remove an unauthorised advertisement may be draconian, but it is not confined to cases where the offender is unknown. It must be exercised carefully and for a legitimate planning purpose. A planning officer’s delegated power may include enforcement powers under related legislation, and lawful sub-delegation to subordinate officers is permissible where the scheme and circumstances support it. A local authority may use a private contractor to execute a removal power on its behalf. Although proportionality under Article 1 of the First Protocol should be considered, a procedural failure does not require quashing where the court finds that the action was substantively proportionate and Convention rights were not violated.

The claimant obtained express consent for a large advertisement to be attached to scaffolding in a specified position. It erected the advertisement on a freestanding structure approximately 15 metres forward of the approved position. The defendant served notices under London Local Authorities Act 1995, section 11, and Town and Country Planning Act 1990, section 225, requiring removal. The advertisement was removed by a private contractor after the claimant failed to comply.

The claimant sought judicial review on grounds concerning delegated authority, sub-delegation, execution by the contractor, failure to consider the consented alternative position, and proportionality under Article 1 of the First Protocol. The central issues were whether the notices were lawfully authorised and whether their service and execution were proportionate.

1. Nature of the section 11 power. The power under section 11 of the London Local Authorities Act 1995 is properly described as draconian because it carries no right of appeal or compensation, but it is not restricted to cases where the person responsible cannot be identified. Its purpose is to enable London local authorities to secure the prompt removal of unauthorised advertisements without recourse to the Magistrates’ Court.
2. Delegation. The defendant’s scheme was to be construed broadly and inclusively. “Town Planning Applications and related matters (including enforcement decisions)” included enforcement under section 11, although that power arose under the 1995 Act rather than the Town and Country Planning Act 1990. The reference to authority being “as set out in the Scheme of Delegation” referred to the authority itself, including the relevant limitations, rather than to a missing list of particular matters.
3. Sub-delegation. It was lawful for the Assistant Director of Planning to authorise subordinate officers to exercise delegated functions. The authorisation did not surrender the delegator’s decision-making power; the officers acted on his behalf. A prior written sub-delegation remained operative where the officer, role and substance of the delegated powers were unchanged, although the defendant’s practice of maintaining operative delegation documents outside the current scheme was unsatisfactory and should be reviewed.
4. Execution and material considerations. The defendant could employ a private contractor to remove the advertisement. The absence of a council officer did not transfer the statutory function to the contractor, and no supervision was required on the facts. The officers had considered the express consent and concluded that the erected advertisement was materially more harmful. The ex post facto evidence was admissible with caution because it elucidated the decision-making process rather than supplying an inconsistent new reason.
5. Proportionality. Proportionality was not consciously or conscientiously considered when the notices were issued. Nevertheless, the court itself assessed the issue and held that removal was proportionate, having regard to the visual harm, prominent conservation-area location, urgency, limited force of the highway-safety concern, absence of a realistic retrospective consent, and availability of the approved position. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, excluding costs of the permission hearing and costs relating to the delegation issue up to 16 August 2007.

First-instance judicial review claim. Permission to apply was granted in stages by His Honour Judge Gilbart QC and Sullivan J. The claim was dismissed by the High Court (Administrative Court).