Council wins High Court appeal over grant by inspector of permission for large digital advert

Calderdale Borough Council has won a High Court challenge to a decision by a planning inspector appointed by the Secretary of State for Housing, Communities and Local Government to allow a large illuminated digital advertisement on a site in Elland.

In Borough Council of Calderdale v Secretary of State for Housing, Communities and Local Government [2021] EWHC 695 (Admin) Timothy Mould QC, sitting as a deputy High Court judge, quashed permission given by the inspector to interested party Clear Channel UK.

Calderdale challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the inspector failed to have regard to the material consideration of highways safety conditions and failed to give legally adequate reasons for granting consent without these.

The council also argued that the inspector acted unfairly in failing to allow it to make further representations prior to his decision.

In October 2019, Clear Channel applied for express consent under regulation 9 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 to upgrade its existing 48 sheet advert to a digital poster, which would display multiple static advertisements on rotation.

Council highway officers advised there was evidence that digital advertisements resulted in an increase in the number and length of glances by passing drivers compared with traditional billboards.

But the highways report advised: “However, it is considered that an objection would be difficult to sustain.

“In order to minimise the highway safety risks a number of conditions are required; to control the intensity of illumination, to avoid any moving or apparently moving images, to control the frequency of advertisement changes and to ensure that changes occur quickly”.

This was supported by the council’s environmental health officer but in December 2019 a planning officer refused express consent acting under delegated powers because the display’s internal illumination would be detrimental to the amenity of neighbouring occupiers.

In the decision letter the inspector acknowledged that the proposed hoarding would be 12.5m away from two dormer windows but not in a direct line of sight and so would not have an unacceptable effect on neighbours.

Calderdale argued that the inspector was under a statutory duty to exercise his powers in the interests both of amenity and of public safety, in particular concerning the highway.

Judge Mould said the council had established that the inspector failed to have regard to the need to impose specific conditional controls in the interests of highway safety.

He further found the inspector’s reasoning was legally inadequate leaving Calderdale unable to understand what the inspector decided and why.

The Deputy High Court judge did not though accept it had been unfair for the inspector to reach a judgment about the conditions to be imposed without first inviting further representations from the parties.

Conditions imposed by the inspector on grounds of amenity were not by themselves sufficient to achieve highway safety objectives and the judge therefore quashed the express consent granted.

Mark Smulian