Court of Appeal rejects challenge to decision of planning inspector on outdoor advertising and discontinuance notice

City Outdoor Media (COM) appealed under section 288 of the Town and Country Planning Act 1990, against the decision of an inspector appointed by the Secretary of State for Housing, Communities and Local Government to dismiss its appeal against a discontinuance notice issued by Manchester City Council pursuant to Regulation 8 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

This was rejected in the High Court and Lord Justice Dove said the appeal before him was on two grounds.

First that HHJ Pearce had been wrong to conclude that where a discontinuance notice targets all classes of deemed consents a decision-maker is not required to consider the necessity of removing all of those classes.

COM also argued the judge was wrong to hold that a failure to propose specific alternatives obviated the need for the inspector to consider whether the notice was necessary.

HHJ Pearce also failed to have regard to the higher threshold for discontinuing compared to granting express consent, which meant the notice made it impossible to to display any advertisements at the site, COM argued.

It also argued HHJ Pearce incorrectly concluded that the case of Putney Bridge Approach Limited v SSCLG [2019] PTSR 1431; [2018] EWCA Civ 2268 was authority for the proposition that inspectors need only consider the display on site if no alternatives are proposed regardless of whether the notice is issued under Regulation 8(1)(a) or Regulation 8(1)(b), and should be overturned.

The court heard COM in 2013 secured consent for a static display, which remained until 2021 when it was replaced by one with a digital display.

Manchester issued the discontinuance notice saying the new advertisement was an illuminated digital sign at a complex junction and likely to create dangerous distraction for drivers.

COM said in its appeal that the inspector fell into error by failing to consider that the notice discontinued all deemed consent rights.

Dove LJ said his starting point was the statutory framework and in particular the specific terms of regulation 8(1) of the 2007 regulations.

This provides that the discretion to issue a discontinuance notice arises if the local planning authority “is satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public”.

He said this test must be satisfied for a valid notice and was the same whether tit related to a particular advertisement with deemed consent under regulation 8(1)(a) or to the display of advertisements for which there is deemed consent under regulation 8(1)(b) on a particular site.

He said: “What is clear is that the terms of regulation 8(1)(b) do not specify or require the decision-maker to undertake any form of assessment of all of the very many possible forms of deemed consent which might be deployed on the site in question and for which there is deemed consent pursuant to Schedule 3 of the 2007 Regulations as part of the examination of whether the [discontinuance notice] is necessary to remedy substantial injury or a danger to the public from the use of the site for the display of advertisements.”

COM's contention that the inspector was required to consider the notice’s effect in removing all types of deemed consent “was no part of the regulatory test which the inspector had to apply. That regulatory test was the one specifically identified by the language of regulation 8(1) and 8(1)(b).”

The judge then turned to whether there was any need for the inspector to have addressed the withdrawal of deemed consent rights arising under Schedule 3 of the 2007 Act.

“In my view the first difficulty with this submission is that it does not properly engage with the practicalities of the decision-making process,” Dove LJ said.

“…the statutory test did not make this a mandatory consideration and so to make it part of the considerations the inspector had to assess it needed to be raised in the material before him”.

But COM had not raised with the inspector any material to support the idea there could be advertisement displays which would not fail the statutory test.

Dove LJ said there was no error in the approach taken by the inspector, who had to gauge whether the test was satisfied based on the evidence before him.

That evidence was closely focused upon the merits of the site and the digital display and “there was no legal error in the approach taken by the inspector in his conclusions”.

Dove LJ said COM’s point that HHJ Pearce’s application of Putney Bridge rendered obsolete the distinction between regulation 8(1)(a) and regulation 8(1)(b) was misconceived.

He said it had been open to the company to produce material to support the contention that the site could have advertisements that did not fall foul of a discontinuance notice “but the appellant did not do so”.

“The judge's reasoning supported the preservation of the difference between these two powers and the different parameters of the issues which might potentially be raised before an inspector on an appeal against a [discontinuance notice] in either case,” he said.

Dove LJ noted there was “no basis on which the court in this case could overturn the decision in Putney Bridge in any event” as none of the criteria for departing from an earlier decision applied.

Sir Nicholas Underhill and Lord Justice Newey both agreed.

Mark Smulian