Wandsworth Borough Council v Adrenalin Advertising

Deemed consent for an advertisement under class 13 requires compliance with every applicable condition throughout the relevant ten-year period. A temporary interruption may be immaterial, but a sustained doubling of the hoarding’s size is a material increase in the extent of use. A change from external to internal illumination must be assessed by asking whether it was capable of adversely affecting amenity or public safety, not whether actual harm occurred. The party asserting deemed consent bears the evidential burden of establishing compliance. The issue is whether consent was required, rather than whether consent ought ultimately to be granted.

Wandsworth Borough Council brought a prosecutor’s appeal by case stated against the decision of District Judge Bayne, sitting at the South Western Magistrates’ Court. The interested party had been acquitted of displaying advertisements without express consent, contrary to section 224(3) of the Town and Country Planning Act 1990.

The issue was whether the advertisements benefited from deemed consent under class 13 in Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. The Council challenged findings concerning changes in the size and illumination of the hoarding, the applicable test for material alteration, and the burden of proof.

1. The appeal was allowed. The matter was remitted to the District Judge with a direction to convict.

2. Class 13 required the interested party to establish that the site had been used continually for the preceding ten years and that none of the conditions excluding deemed consent applied. All the conditions had to be satisfied.

3. The change from a 3-metre by 6-metre hoarding to a 3-metre by 3-metre hoarding, followed by a return to the larger display, constituted a material increase in the extent to which the site was used for advertisements. Although ordinary modernisation might involve a non-material change in size, doubling the display from 9 square metres to 18 square metres was necessarily material.

4. The District Judge had applied the wrong test to the change from external to internal illumination. The question was whether the alteration was capable of having an adverse effect on amenity or public safety, not whether it actually caused harm. An alteration could be material even if its effect on amenity was beneficial.

5. The evidential burden rested on the interested party, which asserted deemed consent, to show that the conditions in class 13 were met. The Council was not required to prove that the alteration was material. Technical or expert lighting evidence was not essential.

6. The court distinguished the question whether consent was required from the separate question whether consent should be granted. The absence of objections and the perceived lack of harm could be relevant to a grant of consent, but could not establish deemed consent.

• South Western Magistrates’ Court: District Judge Bayne acquitted the interested party on five charges of displaying advertisements without consent.
• High Court (Administrative Court): On the prosecutor’s appeal by case stated, the acquittals were set aside and the matter was remitted to the District Judge with a direction to convict.