Build Hollywood Limited v London Borough of Hackney

For deemed consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, an advertisement must comply with the standard conditions. The relevant permission includes permission from a person with power to grant or refuse use of the site for displaying the advertisement, even where further permission is also required.

A highway authority’s power under section 177 of the Highways Act 1980 may continue in relation to a building over a highway which was constructed without a licence. The absence of an offence under section 177 does not prevent that continuing licensing power. Failure to obtain the highway authority’s permission breached standard condition 1.

Build Hollywood Limited appealed by case stated against the dismissal by District Judge Susan Holdham at Stratford Magistrates’ Court of its appeal against a removal notice issued by the London Borough of Hackney under section 225A of the Town and Country Planning Act 1990.

The notice concerned low-level advertising hoardings attached to the appellant’s property and oversailing Upper Clapton Road by approximately 20 centimetres. The District Judge held that the displays lacked deemed consent because they breached standard condition 1 of Schedule 2 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. The questions for the High Court were whether Transport for London had an interest in the site and whether the appellant had breached standard condition 1 by failing to show that it had a licence or permission from Transport for London.

1. The appeal was dismissed. Both questions stated by the District Judge were answered affirmatively.

2. The relevant permission under standard condition 1 is permission to display an advertisement on the site. This includes a person who has power to grant or refuse permission to use the site for that purpose, even if an additional permission would still be needed.

3. The decision in R (JC Decaux UK Ltd) v Wandsworth LBC explained that whether land forms part of the site is a question of fact. Its conclusion concerning land beneath an advertisement suspended 6 to 9 metres above a playground did not establish that a building suspended only centimetres above land, and lying in the path of pedestrians, could never form part of the same site.

4. The court approached the appeal on the basis that the site was the Property, including the attached hoardings, and did not include Upper Clapton Road. The issue was therefore whether Transport for London had an interest in the site through its statutory licensing powers.

5. Section 177 of the Highways Act 1980 distinguishes between the circumstances in which an offence is committed and the scope of the highway authority’s licensing power. If the appellant had not constructed or altered the hoardings, it had not committed an offence under section 177(1). Nevertheless, read with section 177(7), the provision gave the highway authority a continuing power to grant a licence, subject to terms and conditions, for a building over a highway maintainable at public expense that had been constructed without a licence.

6. Upper Clapton Road was a highway maintainable at public expense. Transport for London therefore had power to grant or refuse a licence and to impose terms and conditions concerning the hoardings. The appellant had failed to show that it had obtained a section 177 licence or any other permission from Transport for London. The displays consequently breached standard condition 1 and the removal notice was valid.

1. Stratford Magistrates’ Court: On 8 March 2022, District Judge Susan Holdham dismissed the appellant’s appeal against the removal notice.
2. High Court (Administrative Court): The appeal by case stated was dismissed. The District Judge’s conclusions were upheld and both questions were answered yes.