London borough wins High Court dispute over notice requiring removal of advertising panel

October 24, 2022

Hackney Council has won a High Court appeal over a notice it issued requiring removal of an advertising panel on land at Homerton High Street.

The council’s appeal, by way of case stated, was against the decision of Deputy District Judge Warner, in the Stratford Magistrates Court, dated 7 September 2021, in which she allowed advertising company JC Decaux’s appeal under section 225B of the Town and Country Planning Act 1990 against the removal notice.

In London Borough of Hackney v JCDECAUX (UK) Ltd [2022] EWHC 2621 (Admin) Mrs Justice Lang noted that the display of advertisements requires consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ("the 2007 Regulations").

DDJ Warner had upheld the contention by JC Decaux (the Respondent) that the advertisement benefited from deemed consent under Class 13 Part 1 of Schedule 3 to the 2007 Regulations as it came within the description in Class 13, namely:

"An advertisement displayed on a site that has been used continually for the preceding ten years for the display of advertisements without express consent."

It was common ground that, in the circumstances of this case, the "preceding ten years" were the ten years preceding the date of issue of the removal notice on 14 February 2020, i.e. the period between 14 February 2010 and 14 February 2020.

Hackney contended that there were two periods of time during the preceding ten years when the site was not in use for the display of advertisements, and so the requirement of continual use was not met.

The first period was between 14 February 2010 (when the site was vacant, as evidenced by a photograph taken in October 2009), and either June 2010 (when the Respondent first installed the display panel), or July 2010 (when the panel was first activated and advertisements displayed), pursuant to a contract it made with the owner of the site on 14 April 2010.

The second period was between 17 February 2019 and 26 May 2019, when JC Decaux removed the mechanical display panel and replaced it with a digital display panel. The works were expected to take about four weeks, but the host wall unexpectedly required significant repairs, the supporting brackets had to be designed and fabricated, and there were traffic management restrictions on working hours at the site.

DDJ Warner found that neither of these two periods amounted to a cessation of use for the display of advertisements and so the requirements of Class 13 were met. Therefore, the Respondent had deemed consent for the display of advertisements at the site, and the removal notice should not have been issued.

DDJ Warner also rejected the council's contention that the digital display did not fall within Class 13 because it amounted to a material alteration from the previous mechanical display. The council did not appeal this part of the Judge's decision, accepting that it was an evaluative judgment, rather than an error of law, on the part of the Judge.

Mrs Justice Lang concluded that DDJ Warner erred in law in the interpretation and application of Class 13, specifically as follows:

i) She failed to correctly interpret and apply the requirement in Class 13 that a site had to be used for the "display of advertisements", in other words, actively used for advertising.

ii) She erred in failing to correctly interpret and apply the requirement in Class 13 to the 14-week period between February and May 2019 when no advertisement was displayed at the site.

iii) She erred in applying a test of "exceptional circumstances" which "negated the submission of cessation".

iv) She erred in taking into account the historic use of the site for advertising dating back to the 1980's for the purpose of establishing under Class 13 that the site had been "used continually for the preceding ten years for the display of advertisements".

v) She erred in treating the date upon which the advertisements "went live" as irrelevant.

Mrs Justice Lang allowed the council's appeal against the decision. She remitted the Respondent's appeal against the removal notice to another Judge at the Magistrates Court for re-consideration.