LONDON BOROUGH OF HACKNEY v JCDECAUX (UK) LIMITED

Deemed consent for an advertisement under Class 13 Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 requires active display of advertisements throughout the relevant ten-year period. A contract or intention to advertise is insufficient. The court must decide whether any interruption was material and amounted to a cessation of use, having regard to its length, reason and circumstances, and whether the local planning authority could have enforced during it. Historic use outside the relevant period is relevant only if it supports an inference about use within that period. The burden lies on the party asserting deemed consent. No separate exceptional-circumstances test applies.

The Council issued a removal notice under the Town and Country Planning Act 1990 concerning an advertising panel. The Respondent appealed to the Magistrates’ Court under section 225B. Deputy District Judge Warner allowed that appeal, holding that the site had been used continually for advertising and benefited from deemed consent under Class 13 Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

The Council appealed by way of case stated. The issues included gaps before installation and during replacement of the panel, the relevance of historic use, the contract and the date advertisements went live, the alleged exceptional circumstances, and the burden of proof.

1. Appeal allowed. The Respondent’s appeal against the removal notice was remitted to another Magistrates’ Court judge for reconsideration.
2. Class 13 requires active display of advertisements during the ten years preceding the relevant notice. A material interruption may amount to cessation of use. Relevant factors include the duration and reason for the interruption, its circumstances, and whether the local planning authority could have enforced during it.
3. The court preferred the Court of Appeal’s interpretation in Winfield v Secretary of State for Communities and Local Government, [2012] EWCA Civ 1415, to the broader approach in Westminster City Council v Moran, (1997) 77 P & CR 294.
4. A contract or intention to advertise cannot substitute for actual display. The installation date and the date advertisements went live were material. Historic advertising outside the relevant ten-year period was relevant only if probative of use within that period.
5. The Deputy District Judge failed to analyse both interruptions correctly, misapplied the burden of proof, and introduced an unsupported exceptional-circumstances test.

• Stratford Magistrates’ Court: Deputy District Judge Warner allowed the Respondent’s appeal under section 225B of the Town and Country Planning Act 1990 against the removal notice.
• High Court (Administrative Court): On a case stated appeal, the court allowed the Council’s appeal and remitted the Respondent’s appeal against the removal notice to another Magistrates’ Court judge.