Tile Wise Ltd v South Somerset District Council

Under class B of schedule 1 to the Town and Country Planning (Control of Advertisements)(England) Regulations 2007, exemption is assessed at the time of the alleged breach. The vehicle must then be normally employed as a moving vehicle, and must not be principally used for displaying advertisements.

“Normally employed” concerns the use being made of the vehicle on the particular occasion, while “used principally for the display of advertisements” concerns the vehicle’s general use. Ordinary parking does not itself remove the exemption. The exemption does not apply where a commercial vehicle is being used as a stationary advertising hoarding.

Tile Wise Limited appealed by way of case stated against the Crown Court’s dismissal of its appeal from convictions imposed by the Yeovil Magistrates’ Court. The charges concerned the display of advertisements on four commercial vehicles without the required consent, contrary to regulations 4 and 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 and section 224 of the Town and Country Planning Act 1990.

The vehicles were ordinarily used for transporting goods and personnel but were sometimes parked with an advertising board mounted on them. The central issue was the proper construction of class B in schedule 1 to the 2007 Regulations, particularly the expressions “normally employed as a moving vehicle” and “used principally for the display of advertisements”.

1. The appeal was dismissed. The Crown Court had reached the correct ultimate conclusion, although its construction of both parts of class B was not accepted.
2. Class B provides an exemption for an advertisement displayed on or in a vehicle normally employed as a moving vehicle, subject to the condition that the vehicle is not used principally for the display of advertisements. The exemption must be assessed at the moment when the advertisement is alleged to have been displayed unlawfully. This follows from the wording of the offence, which is committed by a person displaying an advertisement, and from the focus of the other exemption classes upon the particular advertisement or object on which it appears.
3. The singular “advertisement” in column 1 refers to the specific advertisement said to constitute the breach. The plural “advertisements” in column 2 refers to advertisements generally displayed on the vehicle. Column 2 therefore concerns the vehicle’s general use and is aimed at vehicles principally employed as moving advertising hoardings.
4. A vehicle ordinarily used for commercial purposes may remain within class B while parked as an ordinary incident of that use. It is outside the exemption, however, where the use being made of it at the relevant time is the display of advertising, and the vehicle is principally used for that purpose. The construction advanced by Tile Wise would allow vehicles to be exchanged so that advertising could remain permanently displayed while each vehicle retained a general history of commercial use. That would frustrate the statutory planning control.
5. Peak Trailer and Chassis Ltd v Jackson [1967] 1 WLR 155 was distinguished. That decision gave “normally used” its ordinary meaning by reference to the vehicle’s usual use, but its exemption concerned the vehicle itself and not the use being made of it at the moment of the alleged offence. The present provision focused upon the particular use of the vehicle when the advertisement was displayed.
6. The respondent was awarded £4,000 costs. The court took account of its success, the warning given to the appellant before the appeal, and the respondent’s own erroneous submissions and concession below.

• High Court (Administrative Court): the appeal by way of case stated was dismissed. The decision of the Crown Court was upheld in outcome, although its construction of class B was partly rejected.
• Crown Court sitting at Taunton: dismissed Tile Wise Limited’s appeal from conviction on 4 December 2009.
• Yeovil Magistrates’ Court: convicted Tile Wise Limited on 30 March 2009.