When is advertisement immune from enforcement? Interpreting the 10 years rule

The display of an advertisement that should have, but doesn’t have, the express consent of the local planning authority may – if it continues for 10 years – become ‘consent immune’ from enforcement. How the statutory provisions for such immunity should be interpreted and applied has recently been helpfully considered by the High Court in London Borough of Hackney v JCDECAUX (UK) Ltd [2022] EWHC 2621 (Admin).

The requirement for advertisement consent

The display of advertisements requires consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. There are 3 categories of advertisement consent:

• Those permitted without requiring either deemed or express consent from the local planning authority
• Those which have deemed consent
• Those which require the express consent of the local planning authority.

The term “advertisement’” is defined in section 336(1) of the Town and Country Planning Act 1990 as:

“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, and (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”.

Where advertisements which need express consent have been displayed without it, a local authority may serve a removal notice. There is a right of appeal of a removal notice to the local magistrates’ court.

If the notice is not complied with or unsuccessfully appealed, then the authority may remove the advertisement and recover reasonable expenses. Additionally, anyone who displays an advertisement without consent commits an offence.

However, an advertisement that requires express consent and is displayed without it continually for 10 years will be deemed consented and immune from enforcement in accordance with Class 13 of Part 1 of Schedule 3 to the regulations.

The facts of the Hackney case

The case concerned an appeal by Hackney Council of the decision of Stratford Magistrates Court to allow an appeal by JCDECAUX against its removal notice which required the removal of an advertising panel.

It was accepted that the advertisement panel had existed for 10 years. However, the council contended that there had been two periods of time during the preceding ten years when it was not in use for the display of adverts, and so the requirement of continual use was not met.

The first period was around four to five months, which was a time when the panel was installed and then first activated with the advertisements displayed. The latter second period was around three months when JCDECAUX removed the mechanical display panel and replaced it with a digital display panel.

The Magistrates’ Court found that neither of these two periods amounted to a cessation of use for the display of advertisements, and so the requirements of Class 13 were met, and the display panel had deemed consent for the display of advertisements.

In its appeal to the High Court the council contended that the judge made an error of law in determining whether an advertisement was displayed continually as required by Class 13.

Legal test for immunity for advertisement express consent

Mrs Justice Lang found that the Magistrates’ Court had erred in law in the interpretation of the legal test. She remitted the appeal of the removal notice back to the Magistrates’ Court for redetermination. In her judgement she stated that the key question when interpreting Class 13 is:

“whether any break in the display of advertisements is sufficient to amount to a material interruption which brings one period of use to an end, in other words, a cessation of use. If so, a new period of use will commence if and when there is any resumption of display of advertisements thereafter”.

In answering that question, she noted that relevant factors are likely to be the length of the period of use, the length of the interruption, the reason for the interruption and the circumstances around it. She further noted that another relevant factor will be whether, during any break in display, the local planning authority would not have been able to take enforcement proceedings.

By illustration of the above legal test, the judge referred to an earlier decision of the Court of Appeal in Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415. Here, it was contrasted the interruptions of use in that case which arose from the threat of legal sanction –  so bringing the use to an end – with interruptions which were not likely to be material, such as taking down one advertisement pending the anticipated arrival of another one.

She also noted that the legal test in Class 13 is whether there is “display of advertisements” at a site and, not as had been referenced in the decision of the Magistrates’ Court, whether an advertiser has a contract to use a site for advertising and intends to do so.  Likewise, she noted that the burden of proof for an appeal of a removal notice was on the appellant and not the local authority.

Why is the decision important?

The Hackney case helps to clarify the legal test that an owner of advertisement would need to satisfy in order to rely upon the deemed consent of Class 13 and the immunity from enforcement. It also serves to warn owners of what they need to do, and cannot do, should they be knowingly in breach of advertisement consent and wish to benefit in the future from the 10 years immunity of deemed consent.