Insite Poster (A) Ltd, R (On the Application Of) v Ealing Magistrates Court

The claimant company is the leasehold owner of advertising sites at Western Avenue, London in the Borough of Ealing, where it displays advertisements. The claimant contends that when it acquired its leasehold interests in each site it ascertained, as part of its due diligence process, that the display of advertisements was lawful. However, by letter dated 28 July 2014, Ealing Council served removal notices pursuant to Section 225 of the Town and Country Planning Act 1990 alleging that the displays did not have express or deemed consent pursuant to The Town and Country Planning (Control of Advertisements) (England) Regulations 2007. The removal notices required the removal of the displays within 56 days.

The claimant appealed to Ealing Magistrates' Court on the basis that the relevant displays each benefited from deemed advertising consent pursuant to Regulation 6 of the 2007 Regulations. It was the claimant's case that each case display fell within Schedule 3 Part 1 Class 14 being advertisements displayed after the expiry date of express consent. In response, the council alleged that expressed consents had never been granted by any proper authority of the council.

On 14 January 2016, the case came before District Judge Day. The claimant's contention was that the consents were valid on their face and thus remained in full effect unless and until quashed by a court of competent jurisdiction. Further, the claimant asserted that, given that the standard of proof required was high, there was insufficient evidence to support the council's case which was that the original paper consents were a nullity because they had been fraudulently generated by a dishonest member of the council’s staff. District Judge Day dismissed the appeal.

By administrative appeal dated 1 March 2016, the claimant requested the court to state a case for the opinion of the High Court. On 23 March 2016, District Judge Day refused to state a case and on 4 April 2016, by a written notice, provided his reasons. The District Judge found that the original consents had been generated in the course of a fraud perpetrated by an employee of the council. The fraudster had accessed the council’s computer system and had manufactured, doubtless for a healthy profit, false evidence of the granting of consents.

The application before me raises a number of matters. Firstly, I will deal with the issue relating to the basis upon which the District Judge found that a fraud had been perpetrated. It take the view that the District Judge was entirely entitled, on the evidence before him, to find that this was fraud rather than an honest error and, bearing in mind the opportunity he had to hear the evidence in relation to that issue and to assess it, it would be inappropriate and wrong, in the particular circumstances of this case, for me to seek to go behind that finding. It is not material that one could not be certain, to the criminal standard, precisely who the perpetrator was. The District Judge was entitled to find that fraud was behind the purported granting of these consents regardless of any doubts he may or may not have entertained as to the identity of the perpetrator.

Further arguments have been articulated on behalf of the claimant to the effect that, regardless of any fraud, he had a residual discretion to hold that, for some purposes, the order should still be treated as being valid. I have been referred to a number of authorities which, it is said, suggest that such a discretion exists. I do not adjudicate generically on the existence, or otherwise, of such a discretion. However, I am firmly of the view that, even if such discretion were to exist, there is no prospect that it would be exercised in the claimant’s favour on the circumstances of this case.

As the judge determining this matter on paper found, this is a case in which there is a public interest in assuring that inappropriate advertisement hoardings are not left in place. Even if discretionary relief were available in theory, I am entirely satisfied that it would have been inappropriate to provide any such relief in the circumstances of this case highly prejudicial, as it would inevitably have been, to the wider public interest.

I also reject the suggestion that it would be necessary for the consents to be the subject of any formal quashing by way of judicial review. The issue as to the validity of these consents was properly within the jurisdiction of the District Judge to determine. Based on his findings, there is no substance in the argument that it would be necessary to go through the expense, delay and disproportionate response by way of other formal judicial review or suchlike proceedings in this particular case.

It follows, therefore, that this application for permission is refused.