Winfield v Secretary of State for Communities & Local Government

For deemed consent under Class 13, advertising must have occurred continually for the preceding ten years. Ordinary intervals between advertisements may be assessed as matters of fact and degree. By contrast, removing advertisements in response to threatened enforcement constitutes a cessation of the unlawful use, however brief. Any later resumption begins a new period.

A bare supporting structure does not preserve continual advertising during such a cessation. Although the statutory definition of “advertisement” is broad and includes structures designed or adapted for displaying advertisements, an unadorned structure is outside the definition when it is neither being used nor employed for that purpose.

The appellant owned roadside land on which advertisements for his retail business had been displayed in changing numbers and locations since 1997. He sought a certificate under section 191 of the Town and Country Planning Act 1990, contending that the site 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.

An inspector dismissed his appeal because advertisements had been removed for short periods in response to threatened enforcement action. Supperstone J subsequently refused an application under section 288 of the 1990 Act to quash that decision: 2012 EWHC (Admin).

The Court of Appeal considered whether those removals prevented continual use for ten years and whether the supporting posts and wooden structure remained “advertisements” while unadorned.

1. Appeal dismissed unanimously. The inspector's findings necessarily excluded deemed consent under Class 13, even though his analysis had focused on section 171B of the Town and Country Planning Act 1990. Removal of advertisements in response to threatened enforcement constituted a material cessation of the unlawful use. Any subsequent resumption was a new breach from which the ten-year period began afresh.

2. The distinction between “continually” and “continuously” did not alter the outcome. Westminster City Council v Moran [1999] 77 P & CR 294 established that Class 13 can encompass regularly recurring advertising despite occasional periods of non-use, with materiality ordinarily depending on fact and degree. It did not govern an interruption caused by compliance with threatened enforcement. Such compliance is qualitatively different from taking down one advertisement while awaiting another and automatically terminates the relevant period, however short the interruption.

3. This construction accords with the purpose of statutory immunity periods. They allow planning authorities time to discover and address unlawful use before the public interest in planning control yields to the established position. Requiring formal enforcement after the authority's intervention had already secured compliance would discourage proportionate, light-touch enforcement.

4. The wooden posts and structure did not remain advertisements while bare. Section 336(1) gives “advertisement” a broad meaning and includes structures used, designed or adapted for displaying advertisements. That breadth facilitates control and prevents avoidance. It does not enable a bare structure to maintain the continual display required for deemed consent when no product or service is being advertised and the structure is no longer being employed for advertising.

5. Elias LJ agreed that, once the landowner ceased using the structure for advertising in response to threatened legal sanction, the statutory definition was no longer satisfied. Sir Stephen Sedley agreed with both judgments, while observing that the purposive construction required to make Class 13 workable exposed a need for legislative clarification.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the refusal to quash the inspector's decision: [2012] EWCA Civ 1415.

2. Administrative Court: Supperstone J refused the appellant's application under section 288 of the Town and Country Planning Act 1990 to quash the inspector's decision: 2012 EWHC (Admin).

3. Secretary of State's inspector: Dismissed the appeal against the local planning authority's refusal to issue a certificate of lawful use or development.

4. Rossendale Borough Council: Refused the application for a certificate of lawful use or development.