Discontinuance Notices

October 22nd, 2018 by James Goudie KC

The unsuccessful appellant in Putney Bridge Approach Ltd v SoS for CLG and Hammersmith & Fulham Council [2018] EWCA 2268 owns an office building called Riverbank House (“the site”) on the north side of the River Thames, just over Putney Bridge. On 6 October 2016, the Council as the local planning authority (“the LPA”) served a Discontinuance Notice (“DN”) on the appellant requiring it to discontinue the use of the site for the display of illuminated advertisements. Both the appellant, and the company operating the advertisements (JC Decaux Limited) sought to appeal the DN. The SoS appointed an inspector who, by way of Appeal Decisions dated 29 August 2017, refused the appeals. The appellant sought to challenge the Appeal Decisions in the Planning Court, but the challenge was rejected by Ouseley J, and by the Court of Appeal.

The appeal to the Court of Appeal raised issues about the proper scope of a DN which relates to a particular site, rather than a particular advertisement; the interplay between the ‘deemed consent’ regime and the ‘express consent’ regime; and the extent to which an LPA or a planning inspector is obliged to consider hypothetical alternatives to the actual advertisements in place before upholding a DN relating to a site.

Pursuant to Section 220(1) of the Town and Country Planning Act 1990, there is a specific code for the control of advertisements, set out in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. Regulation 4 differentiates between “deemed consent” and “express consent”.

The DN identified the site as Riverbank House, gave reasons for issuing the DN, and stated what was required to be done. The reasons were as follows:-

“The building occupies a prominent position in an open setting and is visible in long range from the approach from the north and from the south. Any illuminated advertisements displayed in or behind the windows of the building in this open setting, would be considered to result in substantial injury to the amenity of the locality, the views out of the three adjacent conservation areas and the setting of All Saints Church and Vicarage Gardens, both Grade II* listed and Putney Bridge itself which is a Grade II listed structure. This is demonstrated by the internally illuminated LED advertisements screen currently displayed inside the building, which are considered to form overly large, dominant and incongruous features, particularly during the hours of darkness. The Council is satisfied that for this reason it is necessary to issue this notice.”

Ouseley J rightly identified the narrow basis of the challenge in the following terms:-

“The challenge focuses not on the planning judgment made by the inspector that the two advertisements on the building were substantially injurious to amenity; that is an unassailable planning judgment. The grounds of challenge focus on whether she gave adequate reasons for her conclusion that the substantial injury to amenity meant that no part of the building should be used for illuminated advertisements. The focus of the challenge in that respect was not that there was any other part of the building which could be so used but that the north and southern edges of the wings within the triangular site fronting on to the main road could be used for other forms of illuminated advertisement than those to which the inspector refers specifically in her decision letter.”

The only issue on the appeal was whether Ouseley J erred in declining to accept the following submission:-

“As such, the inspector erred in law in that she:

(a) failed to properly apply the test set out in Regulation 8(1) of the 2007 Regulations, namely whether prevention through the DN of the display of any form and size of illuminated advertisement pursuant to deemed consent under Class 12 anywhere within Riverbank House was “necessary…to remedy a substantial injury to the amenity of the locality“.”

Coulson LJ, with whom Hamblen and Hickinbottom LJJ agreed, observed, at paragraph 14 that:-

 “It is necessary to start with the proper interpretation of Regulation 8 because that, in turn, governs the proper scope and effect of a DN under Regulation 8(1)(b). It does not appear that the argument about the proper interpretation of the Regulation had arisen prior to the hearing before this court.”

Coulson LJ continued:-

“17.      What lay at the heart of Mr Edwards QC’s case about Regulation 8(1)(b) was the proposition that, for a DN under Regulation 8(1)(b) to be valid, the LPA had to be satisfied that the substantial injury would be, to all intents and purposes, inevitable: that no alternative size, location, or type of advertisement of the relevant category or categories at the site (whether expressly identified by the owner or not) could avoid substantial injury to the amenity of the locality. In effect, his submission was that, if the LPA could not satisfy itself that no hypothetical advertisement might remedy the injury to amenity, the LPA’s concern should be dealt with by a DN under Regulation 8(1)(a) only.

  1. Mr Buley submitted that such an interpretation would render Regulation 8(1)(b) empty in practical terms. It would mean that it would only be on the rarest occasions that the LPA could serve a valid DN under that provision, because it would only be on the rarest occasions that they could be satisfied that any kind of advertisement of the relevant category on the site, no matter how big or how small, and no matter what form it took, would inevitably cause a substantial injury to the amenity of the locality such as to justify a DN relating to the site as a whole. Mr Buley submitted that it could not be the intention of the Regulation to work that way and that, as a matter of construction, Regulation 8(1)(b) did not require the LPA to go that far. He said that, on the basis of the words in Regulation 8, if the LPA identified an inherent likelihood of substantial injury to amenity caused by advertisements on a particular site, rather than injury caused by a particular advertisement, then a DN under Regulation 8(1)(b) was justified.
  2. As a matter of interpretation, I consider that Mr Buley’s submissions are correct. The straightforward distinction in Regulation 8 is between a particular advertisement (8(1)(b)) on the one hand, and a particular site (8(1)(b)), on the other. If the LPA reasonably conclude that there is or is likely to be a substantial injury to the amenity of the locality, caused not by a particular advertisement, but the use of a particular site for the display of advertisements of the relevant category, then a valid DN can be served under Regulation 8(1)(b). In addition, I consider that the LPA is not required to consider every hypothetical advertisement that might be put up on the site before reaching this conclusion, a point to which I return in greater detail in paragraphs 27-35 below.
  3. In the present case, it is clear that both the LPA and the inspector concluded that there was a general problem with the display of illuminated advertisements on the site. … As Ouseley J correctly noted, that reasoning is an unassailable planning judgment. On that basis, and on a proper interpretation of the Regulation, I consider that the LPA and the inspector were entitled to conclude that it was necessary to serve the more extensive notice under Regulation 8(1)(b).”

Coulson J considered that this interpretation of Regulation 8 was supported by a consideration of the context in which a DN is served. As the heading to Regulation 8 makes plain, a DN brings to an end “deemed consent” only. It has no effect on express consent. He said at paragraph 23:-

“… All that the DN did was to bring to an end the LPA’s deemed consent to the illuminated advertisements on the site. That deemed consent was, by its very nature, general in scope: it existed only because the advertisements in question were inside the building. The DN did not prevent the appellant from making an application for express consent in relation to any advertisement in any specified form.

  1. In order to support his approach to Regulation 8(1)(b), therefore, Mr Edwards QC was obliged to argue that, although as a matter of form the DN in this case was concerned only with deemed consent, it would in substance have an inevitable impact on any application for express consent for illuminated advertisements. He argued that, as a matter of logic, if the LPA had discontinued deemed consent for the use of this site for illuminated advertisements, then they would inevitably have to refuse any application for express consent in respect of any illuminated advertisements.
  2. I do not accept such a broad proposition. The Regulations are careful to keep deemed consent and express consent separate. The DN only has an effect on deemed consent. Express consent is not engaged by the Regulation 8 process. If the appellant made an application for express consent for, say, two illuminated advertisements one foot square, which did not exhibit some of the other features identified by the inspector (changing images, high luminescence etc), the DN would plainly be irrelevant to any consideration by the LPA of the merits of that application.
  3. For these reasons, I reject Mr Edwards QC’s conclusion … that the effect of the DN is “draconian”. The effect of a DN under Regulation 8(1)(b) is not to prohibit the use of a site for any advertisements; it has the much more limited effect set out above.
  4. The analysis above relating to the proper interpretation of Regulation 8(1) and the importance of the distinction between deemed and express consent also helps to provide an answer to the other principal limb of the appellant’s case, namely that the LPA and/or the inspector wrongly focussed on the advertisements on site, and not the injury caused by advertisements there more generally. Mr Edwards QC’s submission was to the effect that, since the DN and the Appeal Decisions related solely to the particular advertisements then on display on the site, that was insufficient to permit the service of a valid DN under Regulation 8(1)(b). He said that, for the DN to be valid, the LPA (and subsequently the inspector) had to be satisfied that there was no possible advertisement that could be displayed on the site without causing substantial injury to the amenity of the locality.
  5. I have no hesitation in rejecting that submission. First, I consider it flows from the appellant’s incorrect interpretation of Regulation 8(1) and the fact that the DN discontinues deemed consent only.
  6. Secondly, I consider that it is wrong both as a matter of planning law and as a matter of practicality, to say that (regardless of the case being made by the owner of the site) the LPA or the inspector on appeal were required to satisfy themselves that every other conceivable advertisement that might have been installed at the site would also cause substantial injury.”

“31.      … an inspector should not have imposed on him an obligation to cast about for conditions not suggested before him.

  1. Moreover, from a practical point of view, it would be unworkable if the LPA (before serving the DN), or the inspector (on appeal) were required to consider every potential advertisement that could be erected within the building, and to ask whether that hypothetical advertisement would or might give rise to a substantial injury to the amenity of the locality. That would place an impossible burden on the LPA and on the inspector which, given that the DN goes to deemed consent only, would be unwarranted.
  2. Thirdly and in any event, that is not what happened in this case. …”

“36.      The appellant’s undisguised aim was to hang on to the existing advertisements. The appellant made no application for express consent, let alone an application by reference to new/varied conditions. It cannot now be said that the inspector should have undertaken such a task herself.

  1. For these reasons, therefore, I consider that the width of the inquiry suggested by Mr Edwards QC as being appropriate for the LPA before the DN, or for the inspector on appeal, is unrealistic and outside the scope of Regulation 8. In my view, there was more than sufficient material available to allow the LPA and the inspector to reach their respective conclusions that the DN had been validly served under Regulation 8(1)(b).”

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