Clear Channel UK Ltd v London Borough of Hammersmith & Fulham

Under Class 13 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, an alteration is material if it is capable of affecting amenity or public safety. The court assesses materiality as a question of primary fact, without deciding whether actual harm has occurred. Changes in the structure, bulk, position, illumination and display method may be considered cumulatively. A digital display showing advertisements in an ordered succession is a sequential display, even if the order is randomised, where the advertisements have predetermined display periods. Under the 2007 Regulations, deemed consent is lost if there has historically been a material alteration; restoring the former structure does not revive deemed consent as of right.

The claimant sought judicial review of a notice served under section 11 of the London Local Authorities Act 1995, requiring removal of a digital advertising structure. The defendant concluded that the display no longer benefited from deemed consent under Class 13 of Part I of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

The claimant argued that the new structure was not materially different from the previous display, that it was not a sequential display, and that the authority should first have required restoration of the former arrangement so that deemed consent could revive. The central issues were the meaning of material alteration and sequential display, and whether the 2007 Regulations preserved a right to revert.

1. Judicial review dismissed. The section 11 notice remained valid. The defendant’s costs were to be assessed if not agreed. Permission to appeal was refused, although the suspension of the notice was continued until permission to appeal was granted or refused on paper.
2. Under Class 13(1) of Part I of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, materiality is assessed by reference to amenity and public safety. It is a question of primary fact. The issue is whether the alteration is capable of affecting those interests, not whether actual adverse effects have been established. The court applied the approach in R (Clear Channel UK Limited v London Borough of Southwark) [2006] EWHC 3325 (Admin) and Wandsworth Borough Council v South Western Magistrates’ Court and Clear Channel UK Limited [2007] EWHC 1079 (Admin).
3. The replacement structure was materially altered. Its greater bulk, height, position and obtrusiveness, together with internally changing illumination cast onto surrounding buildings, were capable of affecting amenity. The court could determine that issue from photographs, plans and video evidence without scientific measurements of light intensity.
4. The display was also a sequential display under Class 13(4). Advertisements follow a sequence where they appear in an ordered succession or have predetermined shares of display time. The conclusion applied even though the display’s content changed rather than remaining part of a single substantive message.
5. The former approach under the 1992 Regulations, allowing deemed consent potentially to revive after restoration, did not apply under the 2007 Regulations. The relevant question was whether there had been a material alteration during the preceding ten years. Restoration could not change that historical fact, and a local planning authority was not required to offer restoration before using section 11.

First-instance judicial review proceedings. The judgment records that permission to appeal was refused by the High Court, subject to an interim suspension of the notice pending any application to the Court of Appeal.