London Borough of Southwark v Secretary of State for Housing, Communities and Local Government & Anor

In an advertisement-consent challenge, the decision-maker must address the period sought where the application, the parties’ common understanding and the way the case was presented make duration materially relevant. A failure to do so may constitute failure to consider a mandatory material consideration.

The decision-maker must also explain why a materially different duration was selected, particularly where duration bears on the planning assessment. A court should not refuse relief on the basis that the outcome would necessarily have been the same unless that conclusion is established.

An internal balancing exercise between component parts of a proposal may lawfully establish that there is no overall harm to a conservation area.

The Council brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an Inspector’s decision granting five-year express consent for a temporary advertising shroud around a listed building in the Borough High Street Conservation Area.

The application had sought consent for six months, linked to renovation works and the presence of scaffolding. The Council challenged both the Inspector’s heritage assessment and his failure to address the shorter period sought or explain the grant of five-year consent.

The central issues were whether the Inspector lawfully assessed the combined effect of the advertisement and shroud on the conservation area, and whether duration was a mandatory material consideration requiring express consideration and reasons.

1. Ground 2 dismissed. The Inspector’s decision was to be read as a whole and in a straightforward manner. He distinguished between the harmful visual effect of the advertisement viewed alone and the combined effect of the advertisement and shroud while scaffolding was present. His conclusion was that the proposal, assessed as a whole, caused no overall harm to the conservation area and preserved its character and appearance.
2. The Inspector therefore undertook a permissible internal or net balancing exercise concerning the component parts of the proposal. He did not balance wider public benefits against heritage harm. Since he found no overall heritage harm, the absence of an express statement attaching considerable weight to heritage harm did not disclose an error.
3. Ground 1 allowed. Paragraph 2(1A) of Schedule 4 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 is permissive as to changing the standard five-year period, but an Inspector must necessarily consider the period sought when deciding whether to depart from that period. Whether the application period is a mandatory material consideration depends on the circumstances.
4. Here, the six-month period was central to the parties’ cases on amenity and heritage impact. The Inspector’s nuanced assessment did not make duration irrelevant. A shorter condition might have served a legitimate amenity purpose, and the decision gave no indication that this issue had been considered.
5. The Inspector failed to explain why he imposed five-year consent instead of the six-month period addressed by the parties. That omission caused substantial prejudice because the Council could not understand whether duration had been considered or why the consensus before the Inspector had been rejected.
6. The court could not conclude that the outcome would necessarily have been the same absent the errors. The Inspector might have imposed a time-limited condition. The decision was quashed.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The challenged decision was the Secretary of State’s Inspector’s decision dated 26 September 2024 granting express advertising consent.