Immunity and adverts

A London borough recently won a High Court appeal over a notice it issued requiring removal of an advertising panel. Roderick Morton examines the ruling.

The case of LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin) is a High Court appeal from a decision of a Deputy District Judge in the Magistrates Court against an advert removal notice issued by Hackney.

The display of an advert requires permission but the legislation [1] (“Class 13”) grants deemed permission where the advert is on a “site that has been used continually for the preceding ten years for the display of advertisements…”; in this case, the ten years was the ten years before the removal notice.

On the face of it, this is similar to the position under s171B(2) and (3) TCPA 1990 where immunity from enforcement action is acquired after continuous use for 4 or 10 years.

Hackney said that there were two periods during which the site was not used for the display of adverts. The first was a period of 9 months at the beginning of the relevant period when the site was vacant. The second was a period of 4 months when the advert hoarding was replaced with a digital panel and significant repairs were also required to the supporting wall. However, there was also some evidence that advertising had taken place on the site for a long period since the 1980s.

A 1997 Divisional Court adverts case (Westminster v Moran) suggested that “used continually” did not mean unbroken continuous use; there could be gaps where no advert was displayed but where use continued. 

A 2012 Court of Appeal case (Winfield v SSCLG) held otherwise. In that case, the council had served notices requiring removal of the adverts, the landowner had complied but then replaced the adverts a few days later. Each gap was found to be a period where use ceased before resuming; the land was not being “used continually”.

Readers will recall the decision on s171B in Islington vs SSHCLG and Maxwell Estates (our article here) which made clear that, where a use has not yet become lawful, any period during which the council could not have enforced is a period which interrupts the use; this is irrespective of intention to continue the use or what happened before and after the gap period. Conversely, where a use has become lawful, abandonment or a material change of use is required to end it. That decision was given by Mrs Justice Lang DBE.

Neither Islington nor Winfield were put to the Magistrates Court in the current case. The DDJ found that there had been a very long period of use, that the interruptions were not sufficient to interrupt the use and that the site had therefore been “used continually” so that there was deemed permission. It is this finding which was appealed.

Given her decision in Islington, it is perhaps not surprising that Mrs Justice Lang, when deciding the current case, followed her earlier decision. She found that the Winfield case was both binding (as a Court of Appeal case) and preferred over Moran. She put the decision in two ways. 

First, under the advert legislation, a cessation of use means that the site cannot have been “used continuously”. Material factors in whether there was a cessation of use were the length of the period of use, the length of the interruption, the reason for the interruption and the circumstances in which it has arisen.

But Mrs Justice Lang also found that another relevant factor was whether the council could have enforced during the gap in actual use. This is because the point of the deemed consent under Class 13 is to cover situations where the LPA could have enforced but didn’t do so. If the LPA could not have enforced, the period cannot count towards the deemed consent. This is, effectively the same argument which decided Islington.

In this way, the test for deemed consent under the advert legislation appears now to be wholly in line with the test for immunity from enforcement action under s171B(2) and (3).

Applying this test, Mrs Justice Lang found that the DDJ in the Magistrates Court had reached the wrong conclusion and the appeal was allowed.

There are a couple of other points which are helpful in this judgment. Under Class 13, it is use of the site for the display of adverts which is important. No display means no such use. Intention to display at some point in the future is irrelevant. Again, this is similar to the s171B test for use as set out in Islington.

And Mrs Justice Lang also issued a reminder that the burden of proof is on the advertiser to prove continuous use; it was for the advertiser to prove that the council could have enforced during the apparent gap in use. 

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.

[1] Class 13 Part 1 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007