DATE: 13 Dec 2007
In this important judgment the Court of Appeal confirmed that there are only limited circumstances in which a newly-erected advertisement can benefit from deemed consent under Class 14 of the 1992 Advertisement Regulations (continuation of display after expiry of express consent) and largely killed off any suggestion that there is a 'right to revert' in the context of deemed consent. The site had been used for advertising hoardings since at least 1989 when 6 hoardings were given retrospective consent. These were later replaced by seven materially different hoardings, although no new consent was sought. In judicial review proceedings challenging s11 notices issued against the seven hoardings, the advertiser claimed that it was entitled to replace them with replicas of the six originals: the latter would enjoy deemed consent under Class 14 of the 1992 Regulations because R (Maiden Outdoor Advertising) v Lambeth LBC [2004] JPL 820 established a general 'right to revert' to a display in accordance with the Regulations. The relevant dicta in Maiden concerned Class 13 (site used continually for display of advertisements since 1974 without substantial alteration in the manner of the use of the site) and were to the effect that the removal of a feature which amounted to a substantial alteration (eg illumination) could bring an advertisement back within the scope of that Class. The Court of Appeal dismissed the advertiser's appeal, holding that newly-erected replica hoardings would not be advertisements 'displayed with express consent' within the meaning of Class 14. The Court of Appeal further held that any usage outside the scope of the original consent would involve a breach of limitation (2) in Class 14 (the site must have been 'continually used for the purpose' since the expiry of the consent). There was no general right to revert which overcame either objection.
The words 'displayed with express consent' have been removed from the new version of Class 14 in the 2007 Regulations, but limitation (2) remains. The effect of Maiden has been reversed by amendments to Class 13.
Richard Langham appeared for the successful local authority. He also appeared (with David Holgate QC) for the successful advertiser in R (Maiden) v Lambeth LBC.
