Jcdecaux UK Ltd., R (on the application of) v Wandsworth Borough Council

For deemed advertisement consent, the relevant site is a question of fact. Land is not used for displaying an advertisement merely because an advertisement attached to neighbouring land overhangs its airspace. Moving a display from an adjoining wall to a structure physically connected with the land may therefore create a new site, even where the movement is small.

Where the site remains the same, the court must also ask whether there has been a material increase in the extent of advertising use or a material alteration in its manner. The assessment includes the supporting structure and its effects on visual amenity and use of the land. The statutory scheme is concerned with amenity and public safety, but the alteration need only be capable of affecting those interests.

The claimant sought judicial review of the defendant council’s decision to serve a notice under section 11 of the London Local Authorities Act 1995, requiring removal of an advertising hoarding and its supporting structure.

The hoarding had formerly been attached to the flank wall of 151 Battersea Park Road. It was later detached and installed on a self-supporting structure in the playground of Newton Preparatory School at 149 Battersea Park Road. The claimant relied on deemed consent under Class 13 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

The issues were whether the display remained on the same site and, if so, whether the changes materially increased the extent or altered the manner of advertising use.

1. Judicial review dismissed. The council was entitled to serve the removal notice. The claimant’s application for permission to appeal was refused, with consequential arrangements made concerning the injunction and any inquiry as to damages.
2. The question whether the statutory conditions for serving the notice existed was a question of precedent fact for the court. The power permitted interference with property rights and depended on compliance with statutory conditions, rather than on the council’s reasonable opinion that those conditions existed. This conclusion was supported by R(Maiden Outdoor Advertising Limited) v Lambeth Borough Council [2004] JPL 820 and Khawaja v the Secretary of State for the Home Department [1984] AC 74.
3. Under regulation 2, “site” meant land or building other than the advertisement itself. The advertising structure was part of the advertisement for these purposes. The playground was not used for displaying the advertisement merely because the former wall-mounted display overhung its airspace, and access to land for servicing the display did not constitute use of that land for display.
4. The decision in London Borough of Barking v Mills and Allen [1997] 3 PLR 1 did not govern the case. In that case the advertiser used its own land and an adjoining wall as a single advertising site. Here the display lost its physical connection with the former wall and acquired a physical connection with the playground. It was therefore a new site within Class 13.
5. Alternatively, the changes exceeded Class 13(1). The additional steel girders, brackets and supporting structure devoted more space to the display and were capable of affecting visual amenity and the use and safety of the playground. The alteration was material despite the unchanged display panel and the limited physical distance involved. The guidance in Wandsworth Borough Council v the South Western Magistrates’ Court and Clear Channel UK Limited [2007] EWHC 1079 (Admin) was relevant to this assessment.

Permission to bring the judicial review proceedings was granted by Collins J in October 2007. This was a first-instance decision. Permission to appeal was refused by Blake J, leaving the claimant to apply to the Court of Appeal.