Clear Channel UK Ltd, R (on the application of) v London Borough of Hammersmith & Fulham

Deemed consent for an advertisement site depends on the conditions in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. Whether a change is material is a question of fact judged by amenity and public safety. Available visual evidence may suffice without scientific measurements. A digital hoarding displaying unrelated still images one after another is a sequential display, even without a rational connection between the images. If there has been a material alteration during the preceding ten years, the current advertisement falls outside Class 13. The 2007 Regulations provide no right to revert to a former use and recover deemed consent. A local authority may require removal of the unlawful display.

Clear Channel challenged the council’s decision to require removal of a digital advertisement hoarding. The site had previously displayed traditional, mechanically changing and static illuminated hoardings. The High Court, before Irwin J, held that the digital hoarding involved a material alteration in the manner of use and comprised sequential displays. It also held that the 2007 Regulations created no right to revert to a former use once deemed consent had been lost, and dismissed the judicial review claim: [2009] EWHC 465 (Admin).

The appeal concerned material alteration, the meaning of sequential displays, the alleged right to revert, and whether the council had failed to consider relevant matters before serving a removal notice.

The appeal was unanimously dismissed. Moore-Bick LJ gave the leading judgment; Wall LJ and Sir Anthony May agreed.

1. Material alteration. Whether the change in the manner of using the site was material was a question of fact. The assessment was directed to amenity and public safety, the criteria governing the council’s powers under regulation 3(1) of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. The judge had made his own factual finding. His reference to the reaction of a rational observer was only a check on that conclusion, not a substitution of a different legal test. Photocopies and amateur video evidence were sufficient. Scientific measurements were not essential because visual impact on the viewer could be more important than bare measurements. The council’s treatment of earlier changes was irrelevant to the judge’s own assessment.
2. Sequential displays. In section 336(1) of the Town and Country Planning Act 1990, “advertisement” was capable of including both the displayed image and the structure on which it appeared. In the context of Class 13 condition 13(4), a structure displaying changing images fell within paragraph 13(4)(a). Images were sequential where one followed another from the viewer’s perspective. They did not need to be connected, arranged in a rational order, or shown for fixed periods.
3. No right to revert. The earlier decisions in R (Maiden Outdoor Advertising Ltd) v London Borough of Lambeth [2003] EWHC 1224 (Admin) and Clear Channel v London Borough of Southwark [2007] EWCA Civ 1328 concerned materially different wording in the 1992 Regulations. Under the 2007 Regulations, a material alteration during the preceding ten years takes the current advertisement outside Class 13 altogether. A later change cannot restore the former position or deemed consent. There was therefore no right to revert.
4. Discretion and removal. Once deemed consent had been lost, the council’s practical choices were to tolerate an unlawful use or seek removal. Regulation 8 could not provide a discontinuance route because it applied only to advertisements benefiting from deemed consent. The site’s long advertising history, the council’s earlier inaction, and the appellant’s lack of foresight about the effect of the 2007 Regulations were not relevant absent a legitimate expectation. The proposed prosecution point was not determined: it had not formed part of the judicial review grounds and was raised too late. The notice under section 11 of the London Local Authorities Act 1995 was lawful.
5. Supplemental guidance. Wall LJ expressly agreed with the practical observations in paragraph 54 of R (on the application of JC Decaux UK Limited) v Wandsworth Borough Council [2009] EWHC 129 (Admin). Owners proposing changes to advertising sites should consider the consequences and may need to consult the local authority. These observations were supplemental to the ratio.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed on 27 October 2009.
• High Court of Justice, Administrative Court: Irwin J dismissed the judicial review claim, holding that the digital hoarding involved a material alteration, comprised sequential displays, and did not benefit from a right to revert: [2009] EWHC 465 (Admin).