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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Putney Bridge Approach Ltd v The Secretary of State for Communities And Local Government & Anor [2018] EWCA Civ 2268 (19 October 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2268.html Cite as: [2018] WLR(D) 704, [2018] EWCA Civ 2268, [2019] PTSR 1431 |
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, PLANNING COURT
Mr Justice Ouseley
CO44102017
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HICKINBOTTOM
and
LORD JUSTICE COULSON
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Putney Bridge Approach Limited |
Appellant |
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- and - |
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The Secretary of State for Communities and Local Government |
1st Respondent |
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- and - |
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The London Borough of Hammersmith & Fulham |
2nd Respondent |
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- and - |
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JC Decaux Limited |
Interested Party |
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Tim Buley (instructed by Government Legal Department) for the 1st Respondent
The other parties did not appear and were not represented
Hearing date: Wednesday 10th October 2018
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Crown Copyright ©
Lord Justice Coulson :
1. Introduction
2. The Statutory Framework
"(1) Subject to paragraph (2), the local planning authority may, if it is satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public, serve a notice requiring the discontinuance of –
(a) the display of a particular advertisement for which there is deemed consent; or
(b) the use of a particular site for the display of advertisements for which there is deemed consent."
"A local planning authority may take discontinuance action if it is satisfied that such action is necessary to remedy a substantial injury to the amenity of the locality or a danger to members of the public. As 'substantial injury' to the amenity of the locality is a more rigorous test than the 'interests' of amenity, local planning authorities will need to justify this in their statement of reasons."
"Where an appeal is brought in respect of a discontinuance notice the Secretary of State may –
(a) allow or dismiss the appeal, or
(b) subject to subsection (1A)-
(i) correct any defect, error or misdescription in the discontinuance notice; or(ii) reverse or vary any part of the notice (whether the appeal relates to that part of it or not),
and deal with the matter as if an application for express consent had been made and refused for the reasons stated for the taking of discontinuance action."
3. The DN and the Appeal Decisions
"2. REASONS FOR ISSUING THIS NOTICE
The building occupies a prominent position in an open setting and is visible in long range from the approach from the north and from the south. Any illuminated advertisements displayed in or behind the windows of the building in this open setting, would be considered to result in substantial injury to the amenity of the locality, the views out of the three adjacent conservation areas and the setting of All Saints Church and Vicarage Gardens, both Grade II* listed and Putney Bridge itself which is a Grade II listed structure. This is demonstrated by the internally illuminated LED advertisements screen currently displayed inside the building, which are considered to form overly large, dominant and incongruous features, particularly during the hours of darkness. The Council is satisfied that for this reason it is necessary to issue this notice.
3. WHAT YOU ARE REQUIRED TO DO
Acting under the powers confirmed by Regulation 8 of the Regulations, the Council HEREBY REQUIRES YOU TO DISCONTINUE the use of the building for the display of illuminated advertisements falling within Class 12 of Part 2 of Schedule 3 of the [2007 Regulations] within a period of four weeks after the date on which this notice takes effect."
"4. The main issue is whether the continued use of the site for the display of advertisements with deemed consent would be substantially injurious to amenity."
At paragraph 7 she said:
"The test in Regulation 8 requires that there must be 'substantial injury to the amenity to the locality or a danger to members of the public'. There is no danger to members of the public in this case."
And then, having set out her planning judgment, at paragraph 29, under the heading 'Conclusions', the inspector said:
"The Notice requires the discontinuance of the use of the building for the display of illuminated advertisements with deemed consent pursuant to Class 12 of Part 2 of Schedule 3 for the Regulation. Given the location and orientation of the building as a whole I consider for the reasons given above that any illuminated advertisement on the site would be substantially injurious to the amenity of the locality."
"The south facing site
15. The south facing site is most visible to pedestrians or those in vehicles travelling north over Putney Bridge on the western side although it can be seen by pedestrians travelling towards it on the other side for a short distance. There is no other general advertising in the area and for this reason the advertisement with its illumination and moving display is extremely prominent. This was particularly so at night when, at the time of my visit, the top four floors of the block were in darkness and those windows that were lit had blinds reducing the light. The advertisement, in all of its displays, was considerably brighter than those windows that were lit.
16. The advertisement, in what did not appear to me to be an atrium as described by the Appellant because the glass addition was blocked off from the two floors behind it and it was totally separate from the building, was in complete contrast with the greenery and trees of Bishop's Park and the Vicarage Gardens opposite during the day and the unlit space during the night. When exiting from the Gardens the advertisement was conspicuous and dominated the street scene as it did in from views towards it from most viewpoints. This was again particularly so at night.
…
19. In contrast, the illuminated advertisements for the Premier Inn are site specific, smaller and lower in luminosity than the advertisement at Riverbank House. The illuminated installation is not static and advertisements change regularly as part of the display. This leads to a flashing effect and a great variety of colour and light levels between the advertisements. The result is a distracting and disturbing pattern of light on the adjacent hotel which I consider has an adverse effect on its amenity.
The north facing site
20. The northern side of the building is very prominent in views from Fulham High Street given the open nature of Putney Bridge beyond and the green area of Bishop's Park and Vicarage Gardens. As with the south side there is no general advertising in the area and the large advertisement has a discordant and conspicuous impact on the edge of one Conservation Area and the beginning of another.
21. Also the flashing effect on the residential premises at Simms Court is greater than on the Premier Inn given its close proximity to Riverbank House.
22. My reasons above with regard to the glass addition, the lights in the tower and the scale of the advertisement on the south facing site also apply to the north facing site."
"As such, the inspector erred in law in that she:
(a) failed to properly apply the test set out in Regulation 8(1) of the 2007 Regulations, namely whether prevention through the DN of the display of any form and size of illuminated advertisement pursuant to deemed consent under Class 12 anywhere within Riverbank House was "necessary…to remedy a substantial injury to the amenity of the locality"."
3. The Judgment of Ouseley J
"The challenge focuses not on the planning judgment made by the inspector that the two advertisements on the building were substantially injurious to amenity; that is an unassailable planning judgment. The grounds of challenge focus on whether she gave adequate reasons for her conclusion that the substantial injury to amenity meant that no part of the building should be used for illuminated advertisements. The focus of the challenge in that respect was not that there was any other part of the building which could be so used but that the north and southern edges of the wings within the triangular site fronting on to the main road could be used for other forms of illuminated advertisement than those to which the inspector refers specifically in her decision letter."
"22. The second point is whether the inspector ought to have confined the notice, as she could have done, to the two particular advertisements. This would have left the deemed consent intact in all other respects. This is, to a large extent, bound up with the third point. After all, if her conclusion was that no illuminated advertisements should be deemed to be consented on the building, there was no justification for confining the effect of the discontinuance notice in the way she suggested. If her conclusion on that was not lawful, then there could have been a reason for drawing a distinction between the two advertisements and any others to which the deemed consent applied, depending on what was lawful in her decision. But it needs to be borne in mind that if the discontinuance notice had been so confined, the issue would simply then have been what else could be put up in its place. The local authority, if objecting to what there was put up in its stead, would have been faced with a need to take discontinuance proceedings, as opposed to the claimant seeking express consent for what it wanted to put there, as it still can do, having demonstrated its acceptability. In view of the conclusions to which she has come however, on the cases presented, she had no choice but to uphold the notice as a whole.
23. The only question in this application is whether the inspector made the error, attributed to her, of reasoning solely by reference to the existing advertisements that illuminated advertisements could not be placed on the site pursuant to a deemed consent without substantial injury to amenity. In my judgment that argument must fail. There are a number of reasons why that is so. First, it seems to me to be perfectly clear, although the inspector did not say so in so many words, that she is accepting the case made by the local authority. She spends her time dealing with why she rejects the appellant's case, it is true, but it is clear that she must have considered the local authority's case and is clearly to be taken, in my judgment, as accepting that it has made out the points that it made to the extent that there should be no illuminated advertisement on the site at least without there being an express consent. She is not in a position to consider every single possible illuminated advertisement which might be put forward but she was in a position to say that that should not be done by way of a deemed consent, and she could not impose conditions on the deemed consent itself. Larger advertisements would still have deemed consent.
24. The second point is that the local authority and the appellant were content to treat the existing advertisement as illustrative of the general issues that arose from the illuminated advertisements, and their arguments from the general arose from their very different appraisals of the specific advertisements. The local authority contended that it illustrated how severe were the problems of the illuminated advertisements. By contrast, the appellants contended that it illustrated how attractive they were to the street scene. Each treated the specifics as illustrating the disadvantages or otherwise of illuminated advertisements in general in Riverbank House. The inspector clearly came down against the appellant's contention and was entitled, taking their arguments as expressed by them, to conclude that there were no illuminated advertisements that should be the subject of deemed consent. In so doing she was, in my judgment, reflecting the entire thrust of the appellant's case. No examples were put forward of alternative advertisements which could be in place which could avoid substantial injury to amenity and thus warrant a different form of discontinuance notice."
4. The Proper Interpretation of Regulation 8
5. The Context of Deemed Consent
6. The Proper Width of Any Enquiry
"It was one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise: MJ Shanley Limited v Secretary of State & South Bedfordshire District Council [1982] J.P.L. 380. It was a highly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition which might be attached which might save this planning application."
7. Conclusions
Lord Justice Hickinbottom :
Lord Justice Hamblen :