Calderdale Metropolitan Borough Council v Windy Bank Dairy Farm Ltd & Anor

Whether an advertisement on a vehicle falls within the Class B exemption is a question of fact and degree. The court must assess the vehicle’s use objectively, by reference to an impartial observer informed of the relevant facts. The assessment concerns the position on the day of the alleged offence, but must include the preceding context. A vehicle’s temporary or ordinary stationary position does not necessarily remove it from the exemption. Contractual documents and commercial arrangements are relevant, but the court must examine substance and reality rather than labels or window dressing.

The Council appealed by way of Case Stated against the acquittal of a farmer and a vehicle supplier. The prosecutions alleged that advertisements displayed on lorries and trailers adjoining the M62 were unauthorised under section 224(3) of the Town and Country Planning Act 1990 and regulation 4 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

The Magistrates’ Court found that the vehicles were normally employed as moving vehicles and were principally used for agricultural purposes, rather than for displaying advertisements. The central issues were the proper construction of Class B of Schedule 1 and whether the Justices had made an error of law in applying it to the facts.

1. Appeal dismissed. The Justices had been entitled to acquit both respondents.
2. Class B of Schedule 1 requires consideration of whether the vehicle was normally employed as a moving vehicle and, if so, whether it was used principally for displaying advertisements. The questions are matters of fact and degree. The relevant assessment concerns the state of affairs on the day of the alleged offence, but the court must consider the preceding period and the wider context.
3. The assessment is objective. It is made from the viewpoint of an impartial and disinterested observer who is fully informed of the relevant facts, rather than solely from the perspective of the farmer, vehicle supplier or advertiser. The court must assess the circumstances in the round.
4. The court must consider contractual arrangements, the parties’ conduct and the commercial realities. It is not bound by contractual labels or statements which amount to window dressing. The substance of the arrangements must prevail over their form.
5. The mere fact that a vehicle is stationary does not remove it from Class B. Ordinary parking, temporary immobilisation or a period of inactivity may remain consistent with normal employment as a moving vehicle. Conversely, prolonged static use may cause the vehicle to fail the first test, while a vehicle used principally for storage may still satisfy the second test.
6. The Justices were entitled to accept the respondents’ evidence, find that the vehicles had been moved and used principally for farming purposes, and conclude that both requirements of the exemption were satisfied. The fourth question was answered on the same basis: the relevant use was that found by the Justices, notwithstanding the second respondent’s lack of day-to-day control over where the vehicles were placed. Mr Justice Langstaff agreed.

• Magistrates’ Court: On 4 February 2010, dismissed six summonses against the first respondent and one against the second respondent.
• High Court (Administrative Court): The prosecutor’s appeal by way of Case Stated was dismissed. The Justices’ answers were upheld.