High Court judge rejects statutory review challenge to advertising discontinuance notice

Mrs Justice Lieven found against King Media on all the grounds it argued against the Secretary of State for Housing, Communities and Local Government and the London Borough of Hackney.

King Media sought statutory review under s. 288 of the Town and Country Planning Act 1990 of a planning inspector’s rejection of its case against a discontinuance notice issued by Hackney under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

This concerned an advertisement described as an externally illuminated mesh shroud measuring approximately 10m x 10m for which King holds a 15-year lease allowing its display. The site is within the South Shoreditch Conservation Area though is not locally listed.

Hackney issued the discontinuance notice in August 2024 and in its statement of reasons said: “The local authority is satisfied that it is necessary to serve this notice to remedy a substantial injury to amenity of the locality.”

It also said the advertisement significantly reduced light to occupiers and “damages designated heritage assets by introducing an incongruous and aggressive element, causing substantial harm without providing any public benefit”.

King submitted a report from a heritage expert who concluded the intrinsic historic and architectural interest of the building was unaffected by the advertisement, which also did not cause substantial injury to amenity.

Lievan J said the grounds argued divided into two parts. Grounds 1 and 2 raised issues under the Human Rights Act 1998 and the European Convention of Human Rights (ECHR).

Grounds 3-5 relates to common law arguments concerning adequacy of reasons and failure to properly consider various issues.

Dealing with these in the order argued, Lieven J said Ground 4 concerned inadequate reasons on the impact on heritage assets and a failure to reach conclusions on the specific level of harm to the conservation area.

She said: “There is no obligation on a decision maker to set out precisely where on a scale of harm to heritage assets a particular development lies."

The inspector’s reasoning on harms was “clear and stark”.

Judgements about impact on heritage assets were for the inspector, and her conclusion that the advertisement undermined the attractive and historic nature of much of the built environment nearby “is very clear [and] her reasoning is wholly sufficient on this point”.

Ground Three concerned errors in the treatment of the impact on residents of the building as the inspector failed to consider King's arguments as to why residential amenity was legally irrelevant.

Lieven J said: “The [decision notice] set out the council's position that there was harm to the amenity of the occupants of the building.

“Therefore, the claimant had full notice of the point. The claimant did not argue in its statement of case that this was an irrelevant matter, but rather submitted statements from the occupants that they were not impacted by the advertisement.”

Ground Five concerned failure to have regard to whether there had been a relevant change of circumstances in the area, under Regulation 8(8).

Lieven J concluded: “This ground therefore has no merit. The inspector appropriately took the issue into account.”

She added: “Reading the [decision letter] fairly and as a whole it is apparent that the inspector did consider the issue of whether there had been a material change in terms of improvement to the area.”

This meant the inspector “had regard to the regulation and reached a conclusion on the council's case”.

The first human rights ground alleged unlawful violation of King's A1P1 ECHR rights by a failure to determine whether the decision notice would result in an interference with its possessions, failure to have regard to proportionality and that the discontinuance provisions were incompatible with it’s A1P1 rights.

Lieven J said: “…neither the ECtHR nor the domestic caselaw establishes an absolute rule that compensation is required where the benefit of a possession is removed. It is necessary to consider all the factual and legal circumstances, as well as the broad policy context”.

The judge said the inspector had been right to conclude the absence of compensation did not breach the convention and King could ask Hackney whether an advertisement in different form may be acceptable.

She rejected the argument that the delay in serving the decision notice could itself make the decision disproportionate.

"The reality is that the delay has been largely to the claimant's benefit because it has been able to draw very considerable income from the display of the advertisement throughout that time.”

Lieven J dismissed Ground 2 on failure to have regard to King's submissions on the enhanced threshold under Regulation 8 due to the absence of compensation, which she said was parasitic on the failed first ground.

Mark Smulian