Calderdale Metropolitan Borough Council v Windy Bank Dairy Farm Ltd & Anor

This is a prosecutor’s appeal by way of Case Stated from a decision of Calderdale Magistrates Court sitting at Halifax on 4 February 2010 dismissing six summonses against the first respondent and one summons against the second respondent. All had been brought by the appellant under section 224(3) of the Town and Country Planning Act 1990 alleging breaches of regulation 4 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783, by displaying advertisements without having obtained prior permission on land immediately adjoining the M62 motorway at Hartshead Moor, Brighouse, West Yorkshire. The advertisements of which complaint was made were all displayed on the sides of either lorries or lorry trailers

At the end of the hearing before us we announced that we were dismissing the appeal. Because it had been suggested by the appellant’s counsel, Mr Charles Mynors, that there was an inconsistency between the two authorities bearing on the issue which had been cited to us, we decided to take time to consider our judgment. I am sorry that, in the event, this has taken longer than we had anticipated.

I can take this quite shortly. Section 220(1) of the 1990 Act provides for the Secretary of State to make regulations “for restricting or regulating the display of advertisements … in the interests of amenity or public safety.” Section 222 provides, as the cross-heading indicates, that planning permission is not needed for advertisements complying with the regulations. Section 224(3) makes it a criminal offence for any person to “display” an advertisement in contravention of the regulations. “Advertisement” is defined for this purpose by section 336(1), though nothing turns on the definition in the present case.

I need not rehearse the regulations in any detail. Regulation 1(3) takes out of the ambit of the statutory scheme for the regulation of advertisements – “Parts 2 and 3 of these Regulations do not apply to the display of” – an “advertisement of a description set out in column (1) of Schedule 1 to these Regulations so long as … the display complies with the conditions and limitations specified in column (2) of that Schedule”. So far as is material for present purposes the relevant part – Class B – of the Schedule is in the following terms:

Accordingly the question for the Justices was whether or not the advertisements of which complaint was made by the prosecutor fell within the language of the Schedule. Was the relevant lorry or trailer “normally employed as a moving vehicle”? If not, the offence was committed. If it was so employed, then the further question arose: Was the relevant lorry or trailer “used principally for the display of advertisements”? If so, the offence was committed. If not, then no offence was committed. Put in other words, as Mr Mynors succinctly expressed it, if the vehicle fails either of the tests in the Schedule, any advertisement displayed on or in it will be unauthorised.

It is convenient at this point to refer to the very similar provisions in force at the date of the earlier of the two decisions to which we were referred. At that time the relevant legislation was to be found in the Town and Country Planning Act 1971 and the Town and Country Planning (Control of Advertisements) Regulations 1984. Whilst the scheme of the legislation so far as is relevant was much the same, the corresponding outcome was achieved by the definition in regulation 3(2)(c) of a vehicle as meaning “a vehicle normally employed as a moving vehicle on any highway … but shall not include any such vehicle … during any period when it is used primarily for the display of advertisements.” It will be noted that whilst the first part of that definition accords with the language in the first column of the Schedule in the current regulations, there are two differences between the second part of that definition and the language in the second column of the Schedule: the words “during any period when” no longer appear and the word “principally” has replaced the word “primarily”. There is no need for any extended discussion of the significance (if any) of these various differences, but they need to be borne in mind when considering the two authorities to which we were referred.

The second respondent, trading as Active Vehicle Hire (AVH) from its base in Shrewsbury, supplies vehicles for use, free, by farmers whilst at the same time collecting what is described as a “monthly hire fee” from the customer – the “sponsor” as it is called – whose advertisement appears on the vehicle. The commercial reality, of course, is that the scheme operated by AVH will ‘work’ only if the advertisements for which the sponsor is paying are visible from the highway – in the present case from the M62 motorway – for why, otherwise, should the sponsor be willing to pay for the advertisement? On the other hand, and since the scheme is clearly designed to exploit the exemption from planning control conferred by the relevant provisions of the Schedule to the regulations, the documentation used by AVH and which was before the Justices has quite plainly been drafted with those provisions very much in mind.

There are two standard form documents used by AVH. The first, described as ‘Terms and conditions for free vehicle allocation’ is entered into between AVH and the farmer, in the present case the first respondent. It is addressed to and signed by the farmer. It states that the vehicle has been supplied “for your full and free use upon your farm” and continues “It is important that you make full use of the vehicle without regard for the exposure of the sponsor’s display.” It refers to the need “to ensure that the primary purpose of the vehicle remains agricultural” and states that “It is important that our vehicle/s remain necessary to your farming practice so please be prepared to surrender them during quiet periods as we have a waiting list.” It concludes by stating that “The vehicle/s is supplied for a minimum term of three months, renewable only if still required for agricultural purposes.” At the foot, the farmer “acknowledge[s] receipt of vehicle for agricultural purposes”.

We have seen, as the Justices did, two such documents. The first, dated to run from 8 December 2008 to 8 March 2009 identified the sponsor as being Proppa.com. The second, dated to run from 9 March 2009 to 9 June 2009 identified the sponsor as being Value Doors.

The other document, described as a ‘Sponsorship Agreement’ is entered into between AVH and the sponsor. By it the sponsor “agrees to sponsor the supply of a vehicle to a farmer … for a minimum period of three months.” It provides that the farmer “is to be chosen by AVH and is to enjoy full and free use of that vehicle” and that the farmer “should choose the vehicle that will be most useful to him.” It provides that permission to use the artwork is subject to certain conditions, including (a) that the farmer “should make full use of the vehicle in accordance with all relevant legislation, specifically the Town & Country Planning Act 1992” (reference then being made to the relevant provisions of the Schedule to the regulations) and (b) that the farmer “should not consider given artwork whilst using the vehicle, its primary function is to serve him at ALL times.” It concludes “Failure to comply with these conditions will negate our consent. The farmer should be advised by AVH of the above conditions and that our continued sponsorship is dependant upon them being met, not the level of exposure our artwork receives.” There is reference, but without further elaboration, to “the monthly hire fee”. We have seen an example of this document dated 18 February 2009 signed on behalf of Value Doors UK Ltd.

These are in some respects curious and puzzling documents when one pauses to consider the underlying commercial realities. Why, after all, should the sponsor, who has no doubt paid good money to procure the display of his advertisement, make it a condition of his agreement with AVH that the farmer should not consider the advertisement while using the vehicle and go on to stipulate that failure to comply with this condition will “negate our consent”? Courts presented with documents such as these may find it difficult to take them at face value and may wish to probe the matter further, a topic I return to below.

The terms of these documents also require to be considered in the light of what appears on AVH’s website (www.activevehiclehire.co.uk) as accessed on 28 July 2009, which was also in evidence before the Justices:

“The most cost-effective way of focusing your advertising at your target demographic. Advertising can be a hit or miss business and mistakes can be costly. The problem is ‘how to reach your target group cost-effectively and stand out from the crowd of your competitors’. At the same time you need to keep your costs real and under control.

JUNK MAIL? Just goes straight in the bin.

NEWSPAPERS/MAGAZINES? Here today, thrown tomorrow.

COMMERCIAL RADIO? Everybody tunes away from the ads.

TELEVISION? Expensive when there’s an audience, pointless when there isn’t

How can you reach hundreds of thousands of people without spending hundreds of thousands of pounds? Stand out from the crowd? Target specific areas?

SPONSOR AN ACTIVE VEHICLE!

We have some of the busiest motorways in the world. Literally millions of vehicles, every week, on just a few motorways. A captive audience. If you can compact your message so that it can be conveyed in an instant we can place it on the side of one of our trucks, directly in their line of view, 20’ long and 8’ high, in the areas of your choosing. Job done!

IT’S AS LOGICAL AS THAT!

Millions of vehicles passing an eye-catching display promoting your business. Choose your area, design your display, we’ll do the rest.

Is It Legal ?

Of course it is. Primarily the farmer has full, free and unrestricted use of his chosen vehicle. He is fully entitled to use this vehicle anywhere on his farm. It may be used for transport of stock, feed, equipment, etc. or secure storage. This is its primary function, the advertising is secondary.

Our Services

We will have the chosen vehicle professionally signed to your specification. We will deliver the vehicle to the farmer. We will continue to maintain the vehicle at no extra cost. The vehicle will remain our responsibility at all times.”

The summonses were issued on 8 September 2009. The six summonses against the farmer alleged the commission of offences on, respectively, 9, 13 and 31 March, 11 April, 13 and 22 June 2009; the summons against the second respondent of an offence on 9 March 2009, specifically in relation to advertising by AVH. The summonses were heard on 4 February 2010. The respondents were present but not represented. The Justices heard oral evidence and, in addition to the documents I have already mentioned, were shown various photographs relied upon by the prosecutor.

The Justices acquitted both respondents.

On 30 April 2010 the Justices stated a Case at the prosecutor’s request. The appellant’s notice was filed on 11 May 2010. The appeal came on before us on 23 July 2010.

It does not appear that the Justices were referred to any authorities, but shortly after the appellant’s notice was filed the Divisional Court (Pitchford LJ and Maddison J) decided Tile Wise Limited v South Somerset District Council [2010] EWHC 1618 (Admin), an appeal by way of Case Stated from a decision of the Crown Court on precisely the same legislation. We drew this authority to the attention of Mr Mynors; he helpfully responded by referring us to the earlier decision of the Divisional Court (Watkins LJ and Kennedy J) in Torbay Borough Council v Gorvin (1987) (unreported, 23 June), an appeal by way of Case Stated from a decision of Justices on the earlier legislation to which I have referred.

The Justices recorded it as being common ground that the question was whether what were admitted to be advertisements within the meaning of the Act fell within the relevant exemption in the regulations. They summarised the competing contention as follows:

“The prosecution was brought on the basis that

• advertisements were displayed on the sides of what may be described as vans and lorry trailers that were left in a static position for a long period of time on the First Respondent’s land in such a position as to be seen from a major highway;

• those advertisements were observed by the Council’s staff on seemingly random dates over a significant period of time; and

• they were in place without express consent under the 2007 Regulations and therefore the owner of the land was liable to conviction.

In respect of the Second Respondent, the prosecution was brought on the basis that:

• he had supplied the vans and lorry trailers, complete with advertising attached;

• he received payment from ‘sponsors’ for advertising their products, by advertisements that were attached to the side of the vehicles and trailers, that were provided to farmers for them to use on their land; and

• by so loaning these vehicles he was jointly legally responsible with the land owner for the breach of the Regulations and liable to conviction.

…

The Respondents claimed that in this case the advertisements in question were displayed on or in a vehicle normally employed as a moving vehicle, and that the vehicle in question was not used principally for the display of advertisements. This was disputed by the Applicant.”

The Justices set out their understanding that for the prosecution to be successful the prosecutor had to prove its case beyond reasonable doubt, but where the defence claimed an exemption from the Regulations, as in this case, the respondents had to prove that they had satisfied that exemption on the balance of probabilities.

The Justices set out the prosecutor’s evidence and their findings in relation to that evidence as follows:

“The Court received evidence of several visits made by the Applicant’s staff who had taken photographs of the number, type and position of several vans and lorry trailers on the First Respondent’s land, adjacent to the M62 motorway. The dates of the taking of these photographs were stated as 20 October 2006, 9, 13 and 31 March 2009, and 13 and 22 June 2009. On cross-examination, the Applicant’s main witness, Mr. Rizvi, accepted that there had been no measurements taken of the precise position of the vehicles, nor any notes made of licence plate numbers or trailer markings. The Court, whilst not being critical of Mr Rizvi, was therefore not satisfied beyond a reasonable doubt that these vehicles had not been moved between the various visits undertaken by him.

Mr. Rizvi further stated that in his view at least in respect of one vehicle the wheels were immobilised, such that it could not be considered to be a vehicle normally employed as a moving vehicle, but rather one that could not be used for any other principal purpose other than advertising, as it was in effect static. In cross-examination, he accepted that he did not have any engineering or mechanical qualifications to hold this view nor could he be certain of his view. The Court did not find this to be evidence upon which they could rely to the required standard.

The Court upon considering the photographs produced found as a fact that the vehicles and trailers were not the same ones shown in the pictures on all the dates on which they had been taken. In all the photographs there was a 40-foot trailer, but in the earlier photographs it appeared to be white whereas in later ones it was blue. In other photographs, some of the vehicles and trailers were clearly different.

The Applicant provided no evidence upon which the Court could make a finding of fact as to whether the 40-foot trailer had or had not been moved during the period of time covering the charges before the Court. Against this, the Second Respondent when giving his evidence produced documents, which were not successfully challenged, detailing a trailer being exchanged with another from its Shrewsbury base.

…

The Applicant provided details of a web-site (www.activevehiclehire.co.uk) said to be under the control of the Second Respondent which advertised ‘The most effective way of focussing your advertising at your target demographic’, and showed the method of advertising being to ‘sponsor an active vehicle’. The applicant contended that this showed that the principal purpose of the vehicles was that of advertising and could be nothing else.”

The Justices then turned to the second respondent’s evidence:

“The Second Respondent accepted that he was responsible for the web-site, and that he did receive payment in the form of ‘sponsorship’ from companies wishing to sponsor farmers to free usage of vehicles and trailers whilst displaying their ‘business message’. The web-site indicated that this was legal on the basis that where a vehicle, with the sponsor’s message displayed, was loaned to farmers, provided the farmer had satisfied him that the farmer would have the principal use for the vehicle or trailer, that was “other than for advertising”.

The Court’s finding on this was that there would be a breach of the Regulations unless the Respondents were able to satisfy the evidential burden on them to prove that the vehicles were being principally used for another purpose other than for advertising.

The Second Respondent gave evidence that

• he would contact farmers and offer them the use of vehicles and trailers he owned or controlled, free of charge to them;

• to receive a loan of such vehicles, the farmer had to sign an agreement that they would use the vehicles as moving vehicles, and that they had to have a principal function for them that was not advertising;

• to comply with this agreement the farmer receiving such a loaned vehicle had to keep an activity log, detailing amongst other things the odometer readings and a log of the use to which the vehicle was put.

Details of a specimen log were produced to the Court, covering February and March [the year not being specified], together with a copy of the tachograph dated 10 March.2009, which showed regular movement of the vehicle during that day. The Court was also provided with a string of emails between the First and Second Respondents dated between 9 and 24 February 2009, which purported to discuss that the farmer had a continued use for a loaned vehicle / trailer and that he was from time to time moving the vehicle / trailer he had been loaned.”

Finally, the Justices turned to the first respondent’s evidence:

“The Court accepted the evidence of the First Respondent that

• he had been contacted by the Second Respondent, and had agreed to have vehicles and trailers on his land, as he had legitimate uses for them that had nothing to do with advertising;

• he used the loaned vehicles as, in effect, a lockable mobile barn in which to store equipment and silage;

• whilst the 40-foot trailer was seen in approximately the same place on different occasions by the Applicant’s staff, it had been moved on a number of occasions;

• he had a ‘dolly’ to take the trailer from the place seen to his farmhouse to load it, and then return it to where he needed the items kept in the trailer;

• it was seen approximately in the same place due to the wet conditions in his fields during the months in question; and

• where the trailer was repeatedly placed was on an area of hard standing.”

The Justices then set out their findings as follows:

“The Court found as a fact that the Second Respondent had no control over where on his land the First Respondent placed the vehicles loaned to him. Nor was there any evidence before the Court that he had sought to influence the First Respondent as to where any of the vehicles he had loaned were caused to be, in relation to the major highway, when not being used.

On the basis of that evidence, the Court was satisfied that it was more likely than not:

• that the vehicles shown in the photographs taken in March and June 2009 had been moved on a number of occasions,

• that the use to which they had been put was principally that of assisting a farmer tend his fields, feed his animals and maintain the perimeters of his land; and

• that their principal use as far as the First Respondent (a farmer) was concerned was not for advertising.

The Court was satisfied on the balance of probabilities that the vehicles shown in the prosecution photographs were normally used as moving vehicles, as opposed to being static vehicles.

The Court was further satisfied on the balance of probabilities that the vehicles shown in the prosecution photographs had a principal use to the farmer that was other than being to facilitate the display of advertisements.

The Court found that the First Respondent had used the vehicles and trailers in a way that excluded the need to obtain consent from the local planning authority under the Regulations. Therefore, whilst the Second Respondent was clearly making a profit from loaning the vehicles in question to the First Respondent, he was also provided with a factual situation, by the farmer’s actions, which afforded him an exemption from the need to obtain consent from the authority, to display the advertisements he had clearly placed on the vehicles and trailers that were the subject of the prosecution.”

Their conclusion was that, on the balance of probabilities, both respondents had satisfied the requirements of the exemption from the requirement to obtain consent for the display of the advertisements on the side of the lorries and trailers. They accordingly dismissed the prosecutions.

The Justices posed four questions for the Opinion of the High Court:

“1

Were the vehicles on which the advertisements in this case were being displayed used ‘principally for the display of advertisements’, within the meaning of Class B of Schedule 1 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, in circumstances where many of them had been brought onto the land by a commercial enterprise whose stated purpose (according to the homepage of its website) was to offer “the most cost-effective way of focusing your advertising” to companies wishing to promote their goods and services, and whose “clients” (as publicised on the website) were all companies of such a character?

2

Did the fact that the farmer made some use of those vehicles for agricultural purposes for as long as they remained on his land detract from the fact that their principal use was the for the display of advertisements?

3

Did the fact that the vehicles were driven or transported on to the site, possibly moved around the site, and would in due course presumably be driven or transported off it, detract from the fact that their principal use as long as they remained on the site was for the display of the advertisements?

4

Having found as a fact that the First Respondent and occupier of the land had used the vans and lorry trailers for a principal purpose other than for advertising, was the Court correct in assigning that principal usage to the second respondent Steve Quinn in respect of the one date he was said to have breached the Regulations on the one charge he faced, since he had no day to day control whether the vehicles and trailers were moved or not by the land owner where the vehicles were placed?”

Initially, Mr Mynors was content to accept that the Justices were correct in finding that the vehicles satisfied the test in column 1. He concentrated his attack on the Justices’ further finding that the test in column 2 was satisfied. He accepted that the Justices were entitled to find on the evidence that, viewed from the first respondent’s perspective, the principal use of the vehicles was for purposes – farming and agricultural purposes – other than facilitating the display of advertisements. But he asserted that the proper focus was on the situation as viewed from the perspective of AVH; and viewed from that perspective the principal use of the vehicles was, he submitted, quite plainly for advertising. After all, as he pointed out, AVH was not providing the farmer with the free loan of a vehicle as a charitable gesture but because it was being paid to do so by the advertiser, the sponsor. And, he suggested, it is hardly to be imagined, given the underlying commercial realities, that if the farmer did not in fact park the loaned vehicles in an appropriate place – in the present case in full view of passing motorists driving along the M62 – he would find his agreement being renewed. One has, he submitted, to look to the facts rather than being beguiled by what the documentation purports to stipulate for.

On reflection, and having considered the decision in Tile Wise Limited v South Somerset District Council [2010] EWHC 1618 (Admin), Mr Mynors rather changed tack, submitting now that the respondents could satisfy neither the test in column 1 nor the test in column 2. He concluded with the submission that, happily, on either analysis the Justices had fallen into error and that the appeal should be allowed.

It is not difficult to see the policy underlying this particular part of the Schedule. Vehicles such as lorries and taxis are to be permitted to carry advertising, whether relating to the owner/user or to a third party, without being subject to planning control. A vehicle which is being used in a way in which a moving vehicle is “normally” employed (column 1) may carry an advertisement unless (column 2) the vehicle is used “principally” for the display of advertisements. The distinction can be illustrated by two paradigm cases. As a judge who crosses the Strand most days, I think I can take judicial notice of the fact that many London ‘black’ cabs are covered in advertisements, many of them ‘all-over’. Such a vehicle falls within the definition in column 1 but is not caught by column 2. Even if there is no passenger in the vehicle, its principal use is as a hackney carriage not as a moving advertisement and this, moreover, whether or not it is at the relevant time plying for hire. In contrast, a motor vehicle constructed and used as a mobile hoarding – of the kind one sees, for example, on the streets of London particularly during elections carrying huge posters – while it no doubt falls within the definition in column 1 is equally plainly caught by the qualifying words in column 2.

The examples I have just given are plain and obvious. But other cases – such as the case with which we are here concerned – may be much less clear cut. In such a case the matter is necessarily one of fact and degree.

The mere fact that a vehicle is stationary does not take it out of the ambit of column 1. A ‘black’ cab is still being “normally” employed as a moving vehicle even though it is stopped at traffic lights, stationary on the forecourt of a petrol station, “standing” on a cab rank or parked overnight outside the cabby’s house. Moreover, a vehicle otherwise normally employed as a moving vehicle does not fall outside the definition in column 1 merely because it is jacked up or standing on blocks with all its wheels removed while they are being replaced. On the other hand, such a state of affairs may have persisted for such a length of time that it can no longer be said that the vehicle is normally employed as a moving vehicle. It is a matter of fact and degree. If, to revert to my example of the black cab, the cabby leaves his cab outside his house while he goes away on holiday for (say) six weeks, he will still be able to say that his cab falls within the definition in column 1. And the same will no doubt be the case if the cab is jacked up or standing on blocks with all its wheels removed waiting for them to be replaced, even if it remains in that state for a week or so. If, on the other hand, the cabby were to allow his hackney carriage licence and road fund licence to lapse and then leave the cab standing in front of his house unused, though continuing to display the advertisement, for months on end it might very well be that it would no longer fall within the definition in column 1. Indeed, in such a case it might very well fail the test under both column 1 and column 2, for on the facts postulated it could well be said that its principal use had now become the display of the advertisement. An even more obvious case would be where a lorry trailer is dismounted from its wheels and installed, on hard standing or on blocks, for use as a store shed or barn. Such a vehicle (if, indeed, that is how it could still sensibly be described) would plainly fail the test under column 1, though in contrast to the previous example, it would not fail the test under column 2 if its principal use was for storage rather than display of the advertisement.

There are three further points to be made.

The first is brought out by some of the examples I have given but can usefully be made explicit. The Schedule, and column 1 in particular, focus attention on the state of affairs on the day in question when the offence is said to have been committed. The question is necessarily whether, at the time – on the day – when the offence is alleged to have been committed, the vehicle did or did not fall within the definition in column 1 and did or did not meet the test in column 2; and that, as I have said, is necessarily a question of fact and degree. But the facts cannot be ascertained merely by taking a snapshot view of events on the day in question, ignoring the context and, in particular, ignoring what had been going on during the preceding period. I go back to my example of the cab standing in front of the cabby’s house on blocks with its wheels removed. As can be seen, the question of whether or not it still falls within the definition in column 1 cannot be answered without exploring whether the state of affairs visible at (say) 11.30 in the morning of the day in question has persisted for a matter of hours, days or weeks.

The second point is this. Contrary to what Mr Mynors would have us accept, the facts are to be ascertained by reference to the viewpoint of the impartial and disinterested observer – albeit an observer fully appraised of all the relevant facts – and not solely from the perspective of either the user of the vehicle or the advertiser. Thus I do not accept that, in the present case, the facts are to be assessed or evaluated from the point of view of either the farmer or, as Mr Mynors would assert, the point of view of AVH. As he correctly observes, the regulations do not state from whose point of view the matter should be considered. Precisely so, and for good reason: a system of planning control such as that which we are here concerned with has to be operated by reference to the objective state of affairs rather than by reference to some personal or subjective viewpoint. This does not mean, of course, that the court simply ignores what the parties have said and done or what they say when giving their evidence. On the contrary, this is all highly relevant. But the task for the court involves, in my judgment, an essentially objective appraisal of the circumstances, looked at in the round and not evaluated from any particular or individual perspective.

The third point leads on from the second. In a case such as this the court must of course have regard, as the Justices appropriately did in the present case, both to the contractual and other arrangements entered into between the parties and to the way in which they have carried out their respective responsibilities and obligations. But the court must look to the substance and to the realities rather than to mere form, just as it must be astute to identify and evaluate anything, whether in the contractual arrangements or in the way in which the contract is performed, which smacks of mere window dressing. The court is not bound by mere words and labels if it is clear that the reality is different. As Lord Templeman famously observed in Street v Mountford [1985] AC 809 at page 819,

“If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”

In Tile Wise Limited v South Somerset District Council [2010] EWHC 1618 (Admin), Pitchford LJ, with whom Maddison J agreed, described the argument which arose in the Crown Court and which had been ventilated before the Divisional Court as being (para [8]) “whether the class B exemption is granted in respect of a state of affairs in general or only in respect of a specific advertisement on any specific occasion.” He continued (paras [8]-[9]):

“Concentrating for the moment on column 1, conventionally the words “normally employed” can bear the meaning “usually employed by the user” or alternatively “being employed according to the norm”. There is a difference between the two usages of language which may have a critical effect upon the operation of the exemption. If the question to be answered is “how did the user normally employ the vehicle?” the attention of the tribunal is drawn to a general state of affairs existing at the time of the alleged breach of planning control. If, on the other hand, the question is “was the vehicle being used according to the norm?” the tribunal’s attention is drawn to the specific state of affairs at the point in time when it is alleged that planning control was breached.

Turning to column 2, the words “used principally” may convey either general usage to which the vehicle was put or to the use specifically being made of the vehicle at the time of the alleged breach.”

After considering the opposing submissions of counsel, Pitchford LJ said this (para [14]):

“I therefore turn to the terms of class B in an attempt to examine the intention behind the provision. First, it is noticeable that the singular “advertisement” is used in column 1 but the plural “advertisements” in column 2. It can be safely assumed, in my view, since these two words are so closely juxtaposed, that the draftsman meant what he wrote. For reasons to which I shall come, it is clear that each class of exemption, by description in column 1, is aimed towards a specific advertisement which must, it seems to me, refer to the advertisement alleged by the enforcement authority to constitute the breach. On the contrary, the use of the plural in class B column 2 opens up column 2 from a consideration of the single advertisement under consideration to advertisements in general displayed on the vehicle. If this was not intentional, it is my view that the condition would read “the vehicle was not being principally used for the advertisement” or similar. In my view, it is tolerably clear that the mischief the draftsman had in mind was a vehicle whose principal purpose was advertising, such as a vehicle employed for the purpose of being a moving advertising hoarding, rather than a vehicle employed principally as a commercial vehicle conveying passengers or making deliveries and such like.”

He concluded, in relation to column 2, as follows (para [15]):

“I conclude that, as a matter of construction, … Column 2 does concern the use to which the vehicle is, as a moving vehicle, principally put. While it is possible to envisage an alternative construction, namely that the words “used principally for the display of advertisements” mean only “used principally for advertising”, such a construction requires the insertion of words which, in my view, strains the meaning of column 2 unnecessarily.”

He then turned to consider the meaning of the words in column 1, concluding as follows (paras [26]-[27]):

“The conclusion to which I have come is that class B column 1 of schedule 1 relates to the moment that the advertisement is being displayed by the vehicle and to the use to which the vehicle is then being put …

… In my judgment, column 1 is concerned with the specific occasion on which the advertisement is being displayed and the use to which the vehicle is being put on that occasion. In the case, for example, of a commercial vehicle, if at any time it is not being normally employed as a moving vehicle it will not be exempt. Even if it is being normally employed as a moving vehicle, its advertisement will not be exempt if the vehicle is principally used for the display of advertisements. I do not accept the argument that this construction of column 1 will render liable advertisements on commercial vehicles ordinarily parked up. Parking of a vehicle is an ordinary incidence of the normal employment of a moving vehicle. It will be exempt unless it is established it is principally used as a display of advertisements, in which case, the column 1 exemption will be dis-applied by the column 2 qualification.”

Torbay Borough Council v Gorvin (1987) (unreported, 23 June) was not referred to by Pitchford LJ. In that case the two advertisements in question were displayed, one on a trailer which was a mobile toilet and the other on a large van, both of which were positioned in a field, the advertisements being of a market then in progress on the site. The Justices accepted that the “primary use” of the van was for storing of rubbish for stallholders and the primary purpose of the trailer was for use as a toile for stallholders. They found the defendant to be truthful and accepted his evidence that the primary use of the vehicle and the trailer was other than advertising the market; the vehicles were not used primarily for the purpose of display. They dismissed the informations.

So far as material for present purposes, the Justices asked the High Court two questions: (i) Was the primary use of the vehicles for advertising or for depositing rubbish or use as a toilet? (ii) Was the mobile toilet a vehicle normally employed as a moving vehicle on any highway? Watkins LJ, with whom Kennedy J agreed, said this in relation to the latter question (Transcript page 3):

“As to that question we heard little or no argument. The answer to it I think is that such was the normal use of the vehicle.”

The main focus of the prosecutor’s argument on the appeal was on question (i), in relation to which Watkins LJ said this (Transcript page 5):

“The challenge mounted in this court against the findings of the justices … really boiled down to this … that no reasonable bench of justices could have come to the conclusion that the primary use of these two vehicles was for the purpose of, on the one hand, use as a toilet, and on the other, use as a store for rubbish when the market was in operation … In my judgment on the evidence upon which the justices were entitled to act, using no matter what test – objective or subjective – they were entitled, as a matter of fact, to reach these conclusions. I cannot possibly bring myself to say that no reasonable bench of justices, properly directing themselves, could have so concluded as to what the primary use of each of those vehicles was at the material time. That is sufficient to dispose of that part of the argument.”

He added (Transcript page 6) that:

“It may be that … this respondent is rather fortunate, but … it is not the opinion of this court which matters. What matters … is the judgment of the justices which can only be flawed if this court can bring itself to say that no reasonable bench could have come to the conclusions which this bench did … I would dismiss this appeal.”

Allowing for the difference in the wording of the statutory tests which fell to be considered in the two cases, I see no difference of approach between Watkins LJ and Pitchford LJ. And so far as concerns the present statutory regime, I agree that the correct approach is that described by Pitchford LJ.

I return to the decision of the Justices in the present case.

Although they did not have the benefit of any citation of authority – and Tile Wise had not of course then been decided – I can see no error of law or principle in the approach adopted by the Justices, and certainly no error such as would justify our intervening.

So far as concerns the facts, it was for the Justices to appraise the veracity and reliability of the witnesses who gave evidence before them. They were entitled to accept the evidence of the respondents and in my judgment they were entitled, in the light of all the evidence they had read and heard, to find the primary facts as they did. No sensible challenge could be mounted to any of this, nor was it.

The question then comes down to this: Were the Justices, in the light of all their findings on the primary facts, entitled to conclude, as they did, that the respondents had satisfied the requirements of the Schedule? The task for the Justices was one of judicial evaluation, to determine, in the light of the primary facts as they had found them, whether the vehicles were, within the meaning of the Schedule, “normally employed as a moving vehicle” and, if so, whether or not they were being “used principally for the display of advertisements.” Were the Justices entitled to conclude as they did? In my judgment they were. This was a case which on any view was pretty near the line. And in similar cases, where the evidence comes out in a slightly different way, Justices might well be justified in coming to the opposite conclusion. But the Justices here were, as I have said, entitled to find the primary facts as they did, and, having done so, and in circumstances where I can detect no error of law or principle in their approach, they were entitled to conclude as they did. Other Justices might have taken a different view. So, for all I know, might this court. But that is not the point. The Justices came to a conclusion which in my judgment was open to them on the evidence they had accepted, and that is the end of the appeal.

Some of the questions posed for our consideration by the Justices are phrased rather oddly and none of them admits of a simple Yes or No answer. For my part I would answer their questions as follows: Question 1: The Justices were entitled to conclude that the vehicles were not being used principally for the display of advertisements. Questions 2 and 3: In the circumstances described in these questions, the Justices were entitled to conclude that the vehicles were not being used principally for the display of advertisements. Question 4: The Justices were entitled so to conclude.

I agree with my Lord, for the reasons he has given, that the questions should be answered as he proposes and the appeal dismissed.