Putney Bridge Approach Ltd v The Secretary of State for Communities And Local Government & Anor

A discontinuance notice under regulation 8(1)(b) may address the use of a particular site where the local planning authority reasonably concludes that advertisements of the relevant category on that site are causing, or are likely to cause, substantial injury to amenity and that discontinuance is necessary.

The authority need not establish that every hypothetical advertisement would cause injury or examine every alternative not raised by the parties. The notice ends deemed consent only. Express consent remains available for a different proposal. An inspector may focus on the parties’ cases and the existing advertisements, provided the statutory test is applied and adequate reasons are given.

The local planning authority served a discontinuance notice requiring Putney Bridge Approach Ltd to discontinue the use of Riverbank House for illuminated advertisements benefiting from deemed consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. The company operating the advertisements, JC Decaux Ltd, also appealed.

An inspector dismissed the appeals. Putney Bridge Approach Ltd challenged the decisions in the Planning Court, but Ouseley J dismissed the challenge in [2017] EWHC 3330 (Admin). The appeal concerned whether the inspector had been required to consider every possible alternative advertisement before upholding a site-wide discontinuance notice under regulation 8(1)(b).

1. The appeal was dismissed. Coulson LJ gave the principal judgment, with which Hamblen LJ and Hickinbottom LJ agreed.

2. Regulation 8(1)(b) requires the local planning authority to be satisfied that the use of a particular site for advertisements of the relevant category is causing, or is likely to cause, substantial injury to the amenity of the locality and that discontinuance is necessary to remedy it. The statutory test is capable of being forward-looking. The alternative statutory ground of danger to members of the public was not relied upon in this case.

3. The distinction in regulation 8(1) is between a particular advertisement and the use of a particular site. Where the injury arises from the use of the site for advertisements of the relevant category generally, a site-wide discontinuance notice may be valid. The authority does not have to show that every possible advertisement would inevitably cause substantial injury.

4. A discontinuance notice brings deemed consent to an end only. It does not prohibit all advertising at the site or determine the merits of a later application for express consent. The power under Schedule 4 Part 5, paragraph 2(1), to correct, vary or deal with the matter as an application for express consent did not require the inspector to devise alternative advertisements or conditions without a properly advanced proposal.

5. The local planning authority and the inspector were not required to investigate every hypothetical size, location, type, moving image or luminosity of advertisement. Decision-makers need not stray beyond the parties’ respective cases. This approach was supported by Marie Finlay v The Secretary of State for the Environment & London Borough of Islington [1983] J.P.L. 802 and applied in Top Deck Holdings Limited v Secretary of State for the Environment & Woking Borough Council [1991] J.P.L. 961. A self-generated exercise would have been impractical and could have raised natural justice concerns.

6. Both parties had treated the existing advertisements as illustrative of the general planning issue and had advanced no workable alternatives. The inspector was therefore entitled to conclude that illuminated advertisements on the site would cause substantial injury to amenity. She applied the correct test and gave adequate reasons. The discontinuance notice was upheld and the appeal dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against the Planning Court’s decision.
• High Court, Queen’s Bench Division, Planning Court: Ouseley J dismissed the challenge to the inspector’s decisions on 6 December 2017, reported at [2017] EWHC 3330 (Admin).