Clear Channel United Kingdom Ltd, R (on the application of) v First Secretary of State & Anor

MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the principal Act") to quash a decision of one of the first defendant's Advertisement Appeal Inspectors, dismissing the claimant's appeal against a discontinuance notice served by the second defendant under Regulation 8 of the Town and Country Planning (Control of Advertisements) Regulations 1992 ("the Regulations").

Regulation 8(1) provides as follows:

The discontinuance notice was served in respect of a site in the north-west quadrant of the junction of Clerkenwell Road, Goswell Road, Old Street and Aldersgate Street in London EC1. The site has for many years been cleared of buildings and it has long been used as a car park. It wraps round the northern and western sides of the Hat and Feathers public house, a Grade II listed building which stands at the corner of Goswell Street and Clerkenwell Road. The site is immediately overlooked by the flank walls of the buildings that were left exposed when the site was cleared. A report by the second defendant describes the north flank wall of the Hat and Feathers as being in a degraded condition and buttressed. The eastern flank walls of the buildings along the western boundary of the site are described as being in a similar condition and are, in part, covered with torn sheeting below battens and further buttresses. There are four large advertisements on the site. At the time of the Inspector's site inspection they comprised two 96-sheet (12m x 3m) poster panels, a 48-sheet (6m x 3m) poster panel and a "Golden Square" (6m x 6m) panel. all with external illumination.

These advertisements have deemed consent because express consent was granted on appeal by the Secretary of State for the Environment in 1993.

Having noted that the site was in the Clerkenwell Green, Charterhouse Square and Hat and Feathers Conservation Area, the Secretary of State said in a decision letter dated 11th May 1993:

The Secretary of State's decision letter continued in part:

In paragraph 5 it was said that in all the circumstances it had been concluded:

Accordingly, the Secretary of State gave consent for the display for two years.

The Secretary of State could, when granting consent, have imposed a condition requiring the removal of the advertisements after the two-year period had expired (see Regulation 13(1)(a) and (3)(c)), but he did not do so. In consequence, the retention of the advertisements after 11th May 1995 had deemed consent by virtue of Regulation 6 and Class 14 in part 1 of Schedule 3 to the Regulations.

Returning to the decision letter in the present case, dated 4th March 2004, the Inspector in paragraph 4 dealt with an argument as to the validity of the discontinuance notice, saying:

Under the heading, "The Main Issue" in paragraph 5, the Inspector said:

Mr Coppel's principal submission on behalf of the claimant was that although the Inspector had set out the correct test under the Regulations in paragraph 4 of the decision letter, he had, thereafter, lost his way and applied the wrong test. Alternatively, if he had applied the correct test, then his reasoning in the decision letter was inadequate.

I am satisfied that in defining the main issue in paragraph 5, the Inspector was not seeking to reformulate the test that he had just set out in paragraph 4. He was merely making the point that danger to members of the public was not an issue in the appeal, and that the advertisements were alleged by the second defendant to cause substantial injury to the amenity of the locality because of their visual impact. It is plain that Inspector had his obligations under the Regulations well in mind because he said this in paragraph 6 under the heading, "Policy Background":

Since the decision is relatively short and should be read as a whole, it is convenient at this stage to read the Inspector's appraisal and conclusions:

Accordingly, he dismissed the appeal.

Mr Coppel's first submission was that the Inspector, in paragraph 9 of the decision letter, had given significant weight to a factor which was irrelevant and to which no weight should have been given. He accepted that, in principle, it was for the Inspector to decide what factors were important and which factors should be given little, no, or significant weight. However, he submitted that the fact that the advertisements had remained since 1993 was irrelevant, and in attaching significant weight to the fact that they had become "semi-permanent features in the street scene", the Inspector was, in effect, trying to rewrite the 1993 decision letter. The display could have been brought to an end after two years by the imposition of a condition in 1993, but that had not been done.

I can see no reason why the Inspector in 2004 should not have regarded the Secretary of State's view in 1993 as a relevant consideration. Indeed, it would seem to be an, if not the, obvious starting point in any consideration of the merits of the claimant's appeal. There is no dispute that in 1993 the Secretary of State was of the view that the advertisements would be unacceptable as permanent features in the street scene, but concluded that they were acceptable as a short-term display. Although no condition was imposed, consent was given for only two years and it was envisaged that the situation could be reviewed once the works to the public house which were required by the second defendant's repairs notice had been completed (see above). Although no condition was imposed requiring discontinuance of the display after the two year period, in omitting to impose such a condition the Secretary of State would have been well aware of the second defendant's powers to serve a discontinuance notice under Regulation 8 to bring the "short-term display" that he was permitting to an end. There is, therefore, no question of the Inspector rewriting the 1993 decision letter. Rather, in paragraph 9 he was agreeing with the Secretary of State's conclusions in 1993 and he was entitled to give those conclusions significant weight if he chose.

Of course, the 1993 decision was only the starting point. It was necessary for the Inspector to deal with the arguments that were being advanced by the claimant as to why in 2004 the advertisements should be allowed to remain. Mr Coppel accepted that paragraph 10 of the decision letter fairly summarises the claimant's principal arguments. There were three of them. First, little had changed since the original consent in 1993; second, it was contended that "continued screening is beneficial"; and third, reliance was placed upon the fact that it was intended to redevelop the site as a hotel as soon as possible. It will be noted that this combination of factors did not lead the claimant to contend that anything more than a one-year consent was appropriate.

Mr Coppel submitted that the question was not simply were the advertisements themselves visually intrusive. Even if they had a substantial impact of the conservation area, it would not be necessary to remove them, applying the test in Regulation 8, if, for example, they were hiding an even greater eyesore. The question for the Inspector was what would be the visual impact of the site with the advertisements removed. Having assessed that impact, the Inspector should then have considered what Mr Coppel called "the net effect" upon visual amenity of retaining the advertisements. It was submitted that the Inspector failed to consider this aspect of the appeal and/or failed to articulate his reasons in this respect with sufficient clarity.

Whilst I accept that, as a matter of common sense, the Inspector should have had regard to what Mr Coppel described as "the net effect", I am unable to accept the submission that he failed to do so. It is plain from paragraph 10 of the decision letter that the Inspector was well aware of the fact that one of the claimant's principal arguments was that the "continued screening is beneficial". The decision letter is addressed to the parties who are well aware of the issues. It was not being contended on behalf of the claimant that the four advertisements were "beneficial" because they were things of beauty in their own right. On the contrary, it was being submitted that their retention was "beneficial" because they screened the ugliness behind them.

In paragraphs 11 and 12 the Inspector dealt with the claimant's three arguments in turn. So far as the first argument was concerned, he accepted that the cleared area was little change since 1993, but he noted that the works which were envisaged in 1993 in respect of the listed public house had been carried out so that by 2004 it had "a reasonable external presentation". He was further of the view that the panels detracted from "its present appearance".

The Inspector dealt with the third of the claimant's arguments in paragraph 12. He did not doubt the landlord's intention to redevelop the site as a hotel, but he made the point that there was no guarantee that that development would commence within any particular time frame.

That leaves the second argument advanced by the claimant, that the continued screening provided by the advertisements was beneficial because they hid the ugliness behind them. The Inspector responded to that in the latter part of paragraph 11 of the decision letter, saying, firstly, that the unappealing rear of the "Golden Square" display, which had not been part of the original consent, was clearly visible from Goswell Road and had a negative impact. He then said:

It is plain from those words that the Inspector recognised that the advertisements did perform some screening function in respect of the ugliness behind, but it is equally clear that he did not consider that that argument had much force because much of the unsightliness was above the height of the panels and they tended to draw attention to the ugliness rather than draw the eye away from it.

In my judgment, the Inspector fairly grappled with all three of the principal arguments advanced on behalf of the claimant, and gave adequate reasons for not accepting them.

Next, it is submitted that the Inspector applied the wrong test. He had not considered whether it was necessary to discontinue the display to remedy a substantial injury to amenity, but whether it was "appropriate" to discontinue the display. It was submitted that if the Local Planning Authority or the Secretary of State on appeal wished to discontinue an existing advertisement display with deemed consent, then they had to surmount a higher threshold than if they were merely refusing an application for express consent. Accepting that the test in Regulation 8 is somewhat stricter than that which is applicable where an application is made for express consent (a refusal of express consent might be based on mere injury to amenity, rather than substantial injury, although in practice this is likely to be a distinction without a difference), I can see no reason to suppose that the Inspector, having set out the correct test in paragraph 4 of the decision letter, then went on to apply the wrong test in paragraph 14 of the decision letter.

Dealing, firstly, with the use of the word "inappropriate" in paragraph 13 of the decision letter, in that paragraph the Inspector was drawing the threads together and responding to the claimant's arguments in paragraph 10 in the light of his conclusions in paragraphs 11 and 12. In essence, the claimant had argued that for the reasons summarised by the Inspector in paragraph 10 of the decision letter, a one-year consent was appropriate. The Inspector disagreed, saying that a continued display, even for a short period, would be inappropriate. He was perfectly entitled to express his disagreement with the claimant's case in those terms.

Turning to paragraph 14, the decision letter has to be read in a common sense, rather than a legalistic, way. If that is done, there is no significant difference between saying that a display is "seriously detrimental to the interests of amenity" and saying that it causes "substantial injury to the amenity of the locality." If a display is seriously detrimental to the interests of amenity or causes substantial injury to amenity, then, all other things being equal, it will normally be necessary to remove it. There may, of course, be particular reasons why it is not necessary to remove an advertisement that is causing substantial injury to the amenity of a locality. For example, it may be masking an even greater eyesore, or it may be the case that it will be removed within a very short period in any event because redevelopment is imminent. Other examples could be given. These are precisely the kind of arguments that were advanced by the claimant and considered and rejected by the Inspector. Having set out the correct test once in paragraph 4, the Inspector was not required to repeat it in the succeeding paragraphs of the decision letter. If one asks the question, why did the Inspector consider it appropriate to return effective control over the display of advertisements on the site to the Local Planning Authority, the answer is plain from the preceding paragraphs of his decision letter, because he thought it was necessary to bring the deemed consent to an end to remedy what he saw as a substantial injury to amenity.

Finally, it is submitted that the Inspector erred in saying in paragraph 8 of the decision letter that it was "necessary to pay special attention to the desirability of preserving or enhancing the character and appearance of the area in general." It is said that the Inspector was there referring to the general duty in relation to conservation areas which is to be found in section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Act).

I agree that it is most probable that the Inspector had this duty in mind. It will be noted that the Secretary of State had adopted a similar approach in the 1993 decision letter.

Mr Coppel submits that that was an error because the Secretary of State's decision under Regulation 8 was not a function under or by virtue of any of the provisions mentioned in sub-section (2) of s.72. Section 72, so far as relevant, is in these terms:

If one tries to discover what are "the planning Acts" referred to in s.72(2) of the Act, one goes round the kind of circular definition that appears to be so beloved of Parliamentary draftsmen.

Section 91(2) of the Act provides that:

One then goes to the principal Act, s.336(1), where the planning Acts are defined as follows:

Mr Coppel's submission is that the draftsman in s.72(1) of the Act and/or s.336(1) of the principal Act could have said the Town and Country Planning Act 1990 and the Regulations made thereunder, but has failed to do so. He referred to the use of the phrase, the Act, "or Regulations made thereunder" in the London Local Authorities Act 1995, s.11(1) of which deals with unauthorised advertisement hoardings and is in these terms:

The Regulations are made under s.220(1) of the principal Act:

Mr Coppel accepts that the Regulations themselves are made under the principal Act, but he submits that making a decision under the Regulations cannot be described as a function under or by virtue of the principal Act.

I agree that a decision under Regulation 8 is not a decision that is made under the principal Act, but I accept Miss Moore's submission on behalf of the Secretary of State that, in deciding Regulation 8 appeals, the Secretary of State is exercising a function "by virtue of" that Act. The words "by virtue of" are not to be treated as mere surplusage. They were inserted for a purpose and plainly they have a wider ambit than functions under the statutory provisions mentioned in s.72(2). It might be asked, if the Secretary of State was not exercising a function by virtue of the principal Act, what was he doing when he was dismissing the claimant's appeal? It is common ground that he was exercising a function. It is also common ground that he was exercising a function under the Regulations. But the Regulations did not materialise from the ether, they were made under the principal Act. The Secretary of State was exercising functions under the Regulations because the principal Act said that he must ("shall") make provision by way of regulations for the regulation of advertisements so far as it appears to him to be expedient in the interests of amenity or public safety.

One should be cautious when seeking to draw any distinction between the wording in a local Act, such as the London Local Authorities Act 1995, and the wording in a public general Act. It is perfectly true that the Parliamentary draftsman could have used the phrase "the Act or regulations made thereunder". In fact, a somewhat broader formulation was used to embrace functions under or by virtue of any of the statutory provisions listed in s.72(2). I am entirely satisfied that that phrase is broad enough to catch a decision by a local planning authority or by the Secretary of State on appeal under Regulations which are made under the principal Act.

In any event, Regulation 4(1) of the Regulations provides, so far as material:

As Miss Moore's skeleton argument points out, it would be curious if, in making the Regulations (indisputably a function under the principal Act), the Secretary of State did have to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas, but, having made the Regulations, he was not then under a similar obligation when making individual decisions pursuant to the Regulations.

In my judgment, Regulation 4(1)(a) should not be construed as though it waters down the general obligation to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas. If, in exercising their powers under the Regulations, local planning authorities or the Secretary of State are allowed to take account of any material factors, including in particular the general characteristics of a locality, including features of historic, architectural, cultural or similar interest, then at the very least they must be entitled, as a matter of planning judgment, to pay special regard to and/or to give special weight to the need to preserve or enhance the character of a conservation area, given the overall statutory framework and the underlying purpose of designating conservation areas. Indeed, it would be surprising, and would require the most careful explanation, if a body taking a decision under the Regulations was not to pay special regard to the desirability of preserving or enhancing the character or appearance of a conservation area, even upon the assumption that Mr Coppel's submission was correct.

I am satisfied, therefore, that even if the submission was correct, which, for the reasons given above, I do not accept, this ground of challenge has merely identified a distinction without any real difference in practical planning terms. For all of these reasons, the application must be dismissed.

MISS MOORE: My Lord, I have an application for the First Secretary's costs. In fact, the claimant has agreed those costs and I would therefore ask my Lord to make a summary assessment in that agreed amount.

MR JUSTICE SULLIVAN: Yes. I have not got the figure.

MISS MOORE: I am just going to hand it up.

MR JUSTICE SULLIVAN: Thank you very much. (Handed).

MISS MOORE: My Lord will see the figure on the second page, of £10,055.88.

MR JUSTICE SULLIVAN: It is a whopping great figure, even though it is a short case, because of the ground 4, which was dropped. That is the one that really took up the time and effort and so forth, I imagine.

MISS MOORE: That is quite right.

MR JUSTICE SULLIVAN: But you say that is agreed, that figure?

MISS MOORE: Yes, that is agreed.

MR COPPEL: Yes, my Lord, principle and detail.

MR JUSTICE SULLIVAN: Principle and detail. Thank you very much, Mr Coppel. Then the formal order is that the application is dismissed. The claimant is to pay the first defendant's costs. Those costs are to be summarily assessed in the agreed figure of £10,055.88.