Insite Poster (A) Ltd, R (On the Application Of) v Ealing Magistrates Court

A court determining an appeal concerning alleged advertising consents may decide whether the consents were fraudulently manufactured. It need not require separate judicial review proceedings to quash documents which are shown to be invalid. The precise identity of the fraudster need not be established to the criminal standard where the evidence supports a finding that fraud occurred. Any residual discretion to treat invalid consents as effective would not be exercised where doing so would materially prejudice the public interest.

The claimant leasehold owner displayed advertisements at sites in Ealing. The council served removal notices under section 225 of the Town and Country Planning Act 1990, alleging that the displays lacked express or deemed consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

The claimant appealed to Ealing Magistrates’ Court, relying on deemed consent and apparently valid express consents. The District Judge found that the consents had been fraudulently generated by a council employee and dismissed the appeal. The claimant sought permission to challenge that decision after the District Judge refused to state a case. The central issues were whether the fraud finding could be revisited, whether the consents required formal quashing, and whether any residual discretion could preserve their effect.

1. Fraud finding. The application was refused. The District Judge was entitled, on the evidence and having heard the relevant witnesses, to find that the purported consents resulted from fraud rather than honest error. It was unnecessary to establish the precise identity of the perpetrator to the criminal standard. The reviewing court should not go behind that factual assessment in the circumstances.

2. Residual discretion. The court did not decide generically whether a residual discretion existed to treat an invalid order as valid for some purposes. Even assuming that such a discretion existed, there was no realistic prospect of its exercise in the claimant’s favour. The public interest in ensuring that inappropriate advertising hoardings were removed made relief highly prejudicial and therefore inappropriate.

3. Formal quashing. The validity of the purported consents was properly within the District Judge’s jurisdiction. Separate judicial review proceedings, or equivalent formal quashing proceedings, were not required. Requiring them would have involved unnecessary expense, delay and a disproportionate response.

4. The application for permission was refused.

• Ealing Magistrates’ Court: District Judge Day dismissed the claimant’s appeal on 14 January 2016, finding that the purported consents had been fraudulently generated.
• Ealing Magistrates’ Court: The District Judge refused the claimant’s request to state a case on 23 March 2016 and supplied reasons on 4 April 2016.
• High Court (Administrative Court): Permission was refused.