Local authorities who initiate enforcement action with a "softly, softly" approach, rather than moving immediately to formal sanctions, will be greatly heartened by the recent decision of the Court of Appeal in Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415 which has confirmed that time can stop running for a period of continual display of an advertisement without the local authority having served an enforcement notice or commenced proceedings.
The court upheld the High Court's decision (Supperstone J) [2012] EWHC 469 (Admin) on when a material break occurs in the display of an advertisement and the meaning of advertisement within s.336 of the Town and Country Planning Act 1990 holding that:
- Breaks of any duration in the display of advertisements arising as a consequence of threatened enforcement action were material breaks which brought to an end a period of continuous use. The use of the property for advertising was not simply interrupted, it ended. If use recommenced, time started to run again.
- A bare, unadorned structure is not an advertisement within the meaning of section 336 of the TCPA 1990.
The Law
The display of advertisements is controlled by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007/783) as amended by the Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2007 (SI 2007/1739).
"any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used, or designed, or adapted for use, and anything else principally used or designed or adapted principally for use, for the display of advertisements shall be construed accordingly".
Consent is required from the local planning authority for the display of an advertisement, unless the advertisement is exempt from control or has deemed advertisement consent under one of 16 classes set out under the Regulations. Class 13 allows advertisements to be displayed on a site that has been used continually for the preceding ten years for the display of advertisements.
In the Winfield case there was an application for a CLUED for use of the land for the display of advertisements claiming that the land had been used for advertising for more than ten years and so had the benefit of deemed consent under Class 13 of the Regulations. The application was refused on the basis that it had not been proved, on the balance of probabilities, that the structure had existed and been used continually for the preceding ten years for the display of advertisements. On appeal, the Planning Inspector concluded that the removal of the advertising banners, even for a short period, amounted to a material break in the use of the land for advertising purposes and the appeal was dismissed. The High Court refused the subsequent application for an order quashing the Inspector's decision.
In doing so, the High Court distinguished the decision in Westminster City Council v Moran [1999] 77 PLR 294 (which had held that "continually" meant regularly occurring, not continuous and it will be a question of fact and degree whether periods of non-use amount to a material interruption in use) finding that there is a difference between cases where a landowner interrupts its use of land voluntarily and cases where the interruption is because a local planning authority is threatening enforcement action. In the latter situation the advertising use is not simply interrupted, it ends.
The High Court also held that the words "employed, wholly or partly, for the purposes of advertisement, announcement or direction" meant that the structure needed to be used entirely or partly continually for those purposes to be an advertisement. The structure did not constitute an advertisement when it did not support advertising banners.
On appeal to the Court of Appeal, High Court's decision was upheld with the court holding that the reason for an interruption in use is relevant in deciding if there has been a cessation of use. The court agreed with the High Court that there is a difference between a landowner who stops advertising only because of the threat of enforcement action and who resumes as soon as he considers it safe to do so and an entirely voluntarily cessation. It was therefore correct to distinguish Moran. When the advertising was stopped because of the threat of enforcement action, this constituted a material interruption in the display of advertisements and negated a claim that there had been ten years continuous use. An interruption of the nature that occurred here will end continuous use, however short the duration of the interruption. Nothing turned on the use in Class 13 of the word "continually" as opposed to "continuous".
The court also agreed with the High Court on the interpretation of the definition of "advertisement" contained in s.336. The court held that a bare, unadorned structure is not an advertisement and therefore cannot support a claim that there is a continual display for the purposes of Class 13.
The court rejected the claim that the latter part of the definition of advertisement (that an advertisement "includes any hoarding or similar structure used or designed, or adapted for use...") meant that its wooden posts and structure were themselves an advertisement, irrespective of whether they ever carried any material which would be recognised as an advert. When the posts and structure were unadorned, they were not an advertisement within s.336. To accept otherwise would permit a landowner to erect a structure that it intended to use for advertising, but not in fact put anything on it, and after 10 years claim that it had deemed consent under Class 13. The court was quite clear that that cannot have been the intention of the legislation.
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